South Carolina Will Soon Pass Law Purporting to Outlaw Obamacare In the State

I say "purporting" because I don't believe any Court will agree that individual States may void federal law at will. The sorts of things South Carolina are claiming now are the same sorts of things they claimed in 1861-- and Courts have of course been hostile towards the idea that state law can trump federal law.

It will, however, spark a fresh round of litigation. Which may be what is necessary.

The bill’s main component prohibits agencies, officers and employees of the state of South Carolina from implementing any provisions of the Affordable Care Act, leaving implementation of the national health-care law entirely in the hands of a federal government that lacks the resources or personnel to carry out the programs it mandates.

I don't believe that's remotely true, that the government lacks the federal officials necessary to, say, issue mandates to local insurers as to what they must offer and take them to court for non-compliance.

Additional provisions of H3101 further neuter the Affordable Care Act by outlawing state exchanges, issuing tax deductions to individuals equal to the tax penalties levied by the federal government, and directing the state attorney general to sue over whimsical enforcement of the law.

I don't think any of this will hold up except for that last part.

Obama is arrogating to himself the powers of the Legislature. This is unconstitutional -- dangerously so.

But there are two practical reasons this point has not been pressed:

1. Courts routinely claim that most persons lack "standing" to pursue a particular claim. The rule of standing means that the average person cannot challenge government lawbreaking unless that person has suffered a particular, individual harm making him especially motivated to press the suit vigorously. Courts routinely find that citizens cannot complain about the general effects of laws: they must be specifically, individually, especially harmed by the law to have standing, and most courts use this to avoid entering political disputes, claiming, essentially, no one has standing to challenge the government.

A lawsuit directed to be filed by this law cannot be so easily dismissed. Now we'd have a state, not a citizen, making the claim about Obama's lawlessness, and a court would be much more likely to find that a state has standing.

2. The other thing keeping a lawsuit being filed against Obama's "whimsical" application of the law is simple: Which Republicans want to be the ones go on the record saying that Obama is required to inflict Obamacare on employers now rather than after the midterms? Which Republicans want to sue to make Obama keep old insurance plans illegal?

Republicans who want to win elections can't really agitate for Strict Enforcement of Obamacare, because Obamacare is so awful.

But in this case, South Carolina's state legislators are stepping up to the plate and taking that political hit: They are directing their AG to sue for the proposition that the law must either be enforced as written or not enforced at all.

I like that part of the law.

But this is going to take a very long time to resolve. The trouble with South Carolina's suit, I imagine, is that by the time the courts even begin looking at it, it will be moot. Obamacare will, likely, be fully enforced in three years.

But what if Obama is still playing games with exactly what parts of the law are in effect this week?

posted by Ace at 06:20 PM

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