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February 28, 2011
States seeking compact to bypass Obamacare
The deeply-rooted opposition to ObamaCare has given rise to a movement to use "another tool in the Constitution to try to limit the law's reach - interstate compacts," as reported in the Washington Times.
The Health Care Compact (HCC) Alliance is an effort begun late last year to establish a "compact" among a number of states "that restores authority and responsibility for health care regulation to the member states... and provides the funds to the states to fulfill that responsibility," as described on the HCC web site.
The idea for a health care compact is based on Article 1, Section 10.3 of the Constitution:
No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State...
The HCC web site further states that there are "over 200 interstate compacts in existence, 90 of which have been approved by Congress."
Recently approved compacts include an Interstate Forest Fire Protection Compact and an Emergency Management Compact, both signed by the President, although the Constitution specifies only Congressional approval.
According to Seth Lipsky's The Citizen's Constitution, An Annotated Guide 1, the courts have determined that certain compacts do not require Congressional approval, such as those concerned with disease prevention or creation of a bridge authority.
An example of a compact that raises Constitutional questions, according to Lipsky, is the recent agreement by a handful of states thus far to have the states' electoral votes based on the popular vote, rather than the winner-takes-all method currently used by most states.
The conservative activists leading the nascent effort on a health care compact also have broader goals in mind, according to a January column by Fred Barnes in the Weekly Standard:
They want to use compacts to return other areas of federal control-the environment, drug and medical device regulation, education, to name three possibilities-to the states or even local governments.
Critics of the interstate compact movement are quick to cast cold water on the attempt, with the Washington Times quoting a UCLA law professor saying
This is primarily political theater more than anything else... They need congressional consent, and it doesn't seem likely you can get a bill through the House and Senate and have it signed by President Obama that exempts states from what is President Obama's signature achievement.
However, the Times further notes that
the effort alone signals a growing movement to think about how government power is divided in the U.S.
The Times column discusses legislation introduced this month in the Missouri state legislature authorizing a health care compact, noting that last year a referendum opposing ObamaCare was supported by 71 percent of Missouri voters.
With Missouri Democratic Senator Claire McCaskill, who voted for ObamaCare, up for reelection in 2012, passage of a state compact could bring further pressure on McCaskill, as well as on others among the 23 Senate Democrats up for reelection in 2012.
The health care compact is one more iron in the fire, and as the Weekly Standard notes, "the compact drive is likely to aid Republicans and conservatives by keeping the health care issue alive."
The President may not want to "re-litigate" the past two years, but the movement to stop ObamaCare is growing roots as deeply as the law itself will over the course of time.
1. Seth Lipsky, The Citizen's Constitution, An Annotated Guide, 2009, pp.114-115.