Most citizens who understand the U.S. Constitution’s limits on federal power know that the U.S. Supreme Court’s Obamacare opinion is not supported by logic or even common sense, but they also know that the opinion could be expected from a federal government that is increasingly out-of-touch and out-of-control.
Thankfully, in New Hampshire we had a Republican Legislature this session that used its 10th Amendment authority to stand up to the federal government’s Obamacare overreach with three bills that are now state law. In fact, HB 1297, an act prohibiting the implementation of a state-based exchange, was specifically tailored to position the state to resist Obamacare despite the Court’s ruling in National Federation of Independent Businesses Et. Al. v. Sebelius, which upholds most of it.
By prohibiting a state exchange in HB 1297, state law forces the federal government to set one up for New Hampshire, which is something it isn’t prepared to do. Not only do flaws in federal law require it to be amended before it can be implemented, its implementation will take time and money that the federal Health and Human Services Department doesn’t have. This delay will give Congress the chance to repeal or amend the law and the state Legislature the chance to craft further protections before the new bureaucracy can be set up.
We all know Obamacare lovers will try to set up the law anyway, but HB 1297 also instructs state bureaucrats to resist the federal government’s takeover of insurance regulation and preserve their own authority. Generally, all government regulatory authority can be onerous, but in this battle to preserve state sovereignty, HB 1297 requires state bureaucrats to use their authority to preserve New Hampshire’s free market for health insurance, to ensure an equal playing field for commercial insurers as the federal government attempts to step in, and to promote competition and consumer choice.
To make sure state bureaucrats respect the intent of HB 1297, the law requires that they get the approval of the Joint Health Insurance Reform Oversight Committee, set up last year by HB 601, before they do anything at all. It also requires that they get the advice of a private-sector advisory board designed to look after the interests of New Hampshire businesses and consumers before they even approach the Oversight Committee.
Additionally, HB 1297 requires state bureaucrats, with the consent of the Oversight Committee, to preserve “the state’s flexibility in determining Medicaid eligibility standards and program design and operation.” This section of the bill directly benefits from one part of the Court’s Obamacare decision, which said Congress has the power to bribe states with new dollars to voluntarily adopt new Medicaid programs, but it does not have the power to take away prior funding for existing Medicaid programs if a state does not adopt the new provisions of the law. Thus, the Oversight Committee and the New Hampshire Legislature can and should block any attempt to expand New Hampshire’s Medicaid program, which will save the state millions of dollars.
As the Court said: “It is not our job to protect the people from the consequences of their political choices.” That is why it will be up to the people to elect leaders for state and federal government in 2012 who will continue to resist the law at the state level and either repeal or amend it at the federal level. After all, it is the people we elect to state government who will define the make-up of the Joint Health Insurance Reform Oversight Committee, and who decide whether to continue to resist Obamacare and whether to block the expansion of Medicaid.
One of the first things the next Legislature should do is introduce a bill to strengthen the opt-out provisions created last year via SB 148, which protects New Hampshire residents from being forced to buy an individual health insurance policy unless they were specifically named in a Court case or administrative proceeding. It also protects residents from having to pay “any penalty, assessment, fee or fine” for not buying the insurance. With the Court’s opinion that the individual mandate is a tax on those without insurance, a new bill should clarify that the State of New Hampshire will defend citizens who choose not to pay the tax, even if a Court case or administrative proceeding says otherwise.
Additionally, budget writers will need to be on guard against state Insurance Department or Health and Human Services Department requests that advance the idea of a “partnership” health insurance exchange between the state and federal government. While not technically a state exchange, which is now prohibited, a partnership exchange allows the state to run many of the functions of a state exchange under the auspices of federal control. This, in reality, would be no different than a state exchange and would be just as costly. To truly resist the implementation of Obamacare, the Legislature should resist any attempt to fund a partnership exchange, or anything like it.
Finally, the Legislature should continue to pursue free market ideas for health insurance that resist modern trends toward government regulation or control. One such transitional idea is a law that allows insurance companies to sell policies without all of the state or federal insurance coverage mandates, so long as they also sell policies that include all of the mandates. Hopefully, more free market ideas, such as eliminating all mandates so the free market can set the cost of true insurance at its market rate and let consumers decide what they want, will come later. Such choice in the market, despite any penalties for defying federal law, will attract companies and consumers who will pave the way for less expensive and more effective health coverage in the future.