Federalism at Work: How the Governors are Resisting ObamaCare

President Obama's healthcare overhaul, ObamaCare, faces numerous legal and Constitutional challenges - many of them emanating from the states. That the states are taking such an active roll in opposing ObamaCare demonstrates the advantages of America's federalist system and the benefits of divided power. In a concerted effort to protect individual liberty, America's founding fathers constructed the system of federalism, whereby the power that individuals surrender to the government is shared between the national government and the state government. The Tenth Amendment to the Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people." 

ObamaCare's individual mandate and the financial burdens the new law places on the states are both examples of the federal government's usurpation of power that rightly belongs to the states. It is appropriate, then - under our Constitution's framework - that many of the Republican governors have decided to actively resist ObamaCare's expansion of the powers of the federal government in ways that undermine individual liberty. 

By 2014, ObamaCare will impose significant costs on the states and will drive the states into deep financial crises, as they are forced to expand their Medicaid rolls and increase their spending on government-run healthcare programs. As one example, ObamaCare forces states to expand Medicaid eligibility to 138% of the Federal Poverty Level (FPL), which will inevitably cause states' Medicaid programs to increase dramatically – both in size and cost. In response to the federal government's intrusion into health care matters, republican governors across the country have taken a variety of approaches to protect their states from the full impact of ObamaCare. 

Lawsuits

Twenty-seven states are currently suing the federal government over ObamaCare. In many of those states, the attorney general is leading the fight, but in some states, the governor has worked hand-in-hand with the attorney general to pursue legal action. These states are challenging ObamaCare for two primary reasons – ObamaCare forces their residents to purchase expensive health insurance policies or otherwise pay a punitive fee, and the new law forces states to shoulder a large financial burden. 

Virginia's governor Bob McDonnell and Attorney General Ken Cuccinelli are working together to oppose ObamaCare. As the basis of their argument, they challenge the Obama Administration's claim that the federal government has the authority to impose the individual mandate under the Commerce Clause. As Attorney General Cuccinelli explains: "We argue that if someone isn't buying insurance, then – by definition – he is not participating in commerce. How, then, can the government use the Commerce Clause to regulate non-commerce, i.e. regulating inactivity?"

Another governor who recently joined the lawsuit was Wisconsin's Scott Walker. As soon as he assumed office this past January, Gov. Walker immediately gave Attorney General J.B. Van Hollen the authority to join the lawsuit against ObamaCare. 

Declining ObamaCare Funding

Beyond the legal battle, some Republican governors have determined that the best way to shield their states from ObamaCare is to simply refuse to accept ObamaCare funding. Last summer, Minnesota's then-governor, Tim Pawlenty, led the way with this approach. In late August he issued an executive order, which directed state agencies to forego applying for ObamaCare grants and from accepting ObamaCare funds. Gov. Pawlenty argued that he had an obligation to preserve Minnesota's autonomy. In his executive order, he wrote: "The boundary between state and federal government must be maintained to prevent an unwise and unsustainable federal takeover of health care in our state."

Another republican governor who has recently renounced federal ObamaCare funds is Gov. Mary Fallin of Oklahoma. While Gov. Fallin had initially accepted a $54 million ObamaCare grant, under pressure from conservative groups, she announced in April that Oklahoma "will not accept the $54 million Early Innovator Grant." She said that returning the money helped to accomplish her "goal from the very beginning: stopping the implementation of the president's federal health care exchange in Oklahoma."

Refusing to Implement ObamaCare

An additional group of Republican governors has decided that the most efficient way to block ObamaCare in their states is to not implement the new law or initiate any of the new programs. In February of this year, Alaska Governor Sean Parnell announced that his state would not move forward with ObamaCare's implementation. He cited the recent decision of U.S. District Court Judge Roger Vinson who ruled that the individual mandate was unconstitutional, and thus, the entire law was unconstitutional. Gov. Parnell explained his decision on Fox News: "In my view, Alaska is bound by the decision. I mean, it's a longstanding notion of judicial review: The federal courts rule – they have said this is unconstitutional. We're not going to go forward and implement it at this point."

Florida governor Rick Scott also halted ObamaCare's implementation in his state after the Florida ruling. He explained his decision to block ObamaCare in his state: "I personally have always believed that [ObamaCare] was going to get repealed or declared unconstitutional because I think it's a significant job killer. So one thing we're doing here [in Florida] is we are not going to spend a lot of time and money …[to] implement [the law]."

More recently, last month Idaho's Gov. Butch Otter signed an executive order that blocks ObamaCare, prohibiting the executive branch agencies from establishing new programs, amending programs, or in any way promulgating rules to implement ObamaCare. 

Seeking Autonomy from Federal Government

A large group of governors, led by Indiana's Mitch Daniels, decided to directly petition to the Obama Administration and seek waivers and flexibility. In February, twenty-one Republican governors from across the country jointly signed a letter to Health and Human Services Secretary Kathleen Sebelius. The letter first detailed their objections to ObamaCare, including their belief that the new healthcare law is unconstitutional, and then described the governors' requests. The governors said they do not wish to be "the federal government's agents in this policy" and that they therefore would like complete flexibility and autonomy in establishing the state exchanges.

The founding fathers correctly understood that the real threat to liberty in America would come from the swelling of the government into private areas of individual and personal matters. James Madison wrote, "I believe that there are more instances of the abridgment of the freedom of the people by the gradual and silent encroachment of those in power than by violent and sudden usurpations." The republican governors' commitment to fighting back against the Obama Administration's silent encroachment into Americans' healthcare is a healthy and necessary reaction to ObamaCare, and it represents the best of American federalism. 

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Shonda Werry is a former staffer at the Senate Republican Conference from 2004 to 2007, and has extensive public policy experience. She is a graduate of the University of Chicago and holds a Master's Degree from Johns Hopkins University.