This way lies madness: Tennessee, the Affordable Care Act and the Nullifiers

The Affordable Care Act is the law that created both the federal health insurance exchanges and the state health insurance exchanges. It also created mandates for some business owners and people to buy health insurance. It isn’t socialized medicine (where the government owns the hospitals) and it isn’t single-payer health care (where the government pays private companies to provide health care). The exchanges are a hybrid where healthy people who might not feel like they need health insurance are required to buy it to support the costs of older, less-healthy people who really need health insurance to keep from being bankrupted by medical bills. It is the result of a compromise reached after months of negotiations. It is imperfect, but it is the law.

The result of the ACA is insurance companies can no longer discriminate against people who have “pre-existing conditions.” They can no longer charge women more money for the same care. They can no longer kick you out of your plan when you become ill. There are no more lifetime caps to benefits. Your children can remain on your health care plan until they’re 25. But you have to buy insurance or pay a fee for not buying it. The ACA set up government subsidies for people who can’t afford insurance and produced a web site, healthcare.gov, for people to shop for plans if their state chose not to set up a state-based exchange.

The ACA also provides money to states to expand medicare coverage for the poor, uninsured residents. The federal government offered to pay 100 percent of the costs of the expansion for the first three years and then reduce the subsidy thereafter. Some states with the largest populations of poor, uninsured residents (*cough* Texas *cough*) refused the expansion.

My home state, Tennessee, refused to accept the federal expansion and did not set up a state-based exchange. So Tennessee residents had to shop on healthcare.gov. So far about 36,000 of us did.

The ACA isn’t health insurance. It is a marketplace where people can compare insurance plans available and make an informed decision. They can also find out if they qualify for subsidies to help defray the costs. But when you’re done, what you have is a health insurance plan sold by a private company to an individual or family. The plans are the same as the ones sold out in the world by agents and brokers. The ACA doesn’t reform health care. It reforms health insurance, establishing minimum standards of coverage, encouraging people to buy plans and helping those who can’t afford them.

Enter State Senator Mae Beavers and State Representative Mark Pody. These two have cooked up a bill to make it illegal to use healthcare.gov to buy insurance. Specifically, the bill states:

…no powers, assets, employees, agents or contractors of the state or its local government subdivisions, including higher education institutions, can be used to implement or administer the federal health care program; bans Obamacare healthcare exchanges in the state; prohibits local governments in Tennessee from participating in or purchasing insurance from an ObamaCare health insurance exchange;
provides that any health insurance contracts purchased in violation shall be void in a court of law in Tennessee; and empowers the General Assembly to enact sanctions, fines and penalties for violation of the proposed law and gives the state’s Attorney General the right to file a lawsuit against violators;

So, even though my insurance (which is employer-based) is identical to your insurance (which you purchased through healthcare.gov) mine is fine and legal, but yours is null and void. Plus, you could be sued by the state for buying it and state-sponsored hospitals can by sued by the state for honoring it. As Betsy Phillips points out in the Nashville Scene, the University of Tennessee Medical Center would, under this law, have a nightmare responsibility to not only verify that patients have insurance, but where they bought it.

Why? Because reasons, that’s why. Beavers and Pody claim that Tennesseans don’t want the ACA and that the federal government cannot force state agencies to comply with federal laws. They believe, based on Printz v. US that the state can nullify federal law. And oooooh do right wingers love the idea of nullification. Beavers’ Facebook page (find your own link) is full of people commenting in all caps “NULLIFY!!!!”

Quick review: Printz v. US was a Supreme Court case in which state law enforcement officers sued the government over the Brady Law, which established the federal criminal background check requirement for gun purchases from licensed dealers. Specifically, before the instant check system was implemented, there were interim regulations requiring gun sellers to fill out of a form on the buyer and submit it to law enforcement who was compelled to run a background check within five days. The court ruled that the federal government cannot commandeer state law enforcement to enforce federal law.

Beavers and Pody believe this decision can be applied to the ACA so that the feds cannot require that the state implement Obamacare. But here’s the thing: Printz v. US does establish a precedent that the fed can’t commandeer the state’s assets to enforce federal law, but it doesn’t allow for nullification of the law. Nor does it allow the state to block federal officials from enforcing federal law in the state. Nullification allows states to ignore unconstitutional laws, but the ACA has been upheld by the Supreme Court as constitutional.

See, if states could just ignore any federal laws they wanted to, we’d still have segregated schools in the South and Chicago and Washington, D.C. would still have a ban on guns. In 1960, the Supreme Court found in Bush v. Orleans School Board that the concept of nullification was  an “illegal defiance of constitutional authority.” So you can scream in all caps on Facebook “NULLIFICATION” all you want, but the courts are going to smack you down.

When Beavers and Pody announced the bill, they were asked some basic questions:

Have they talked with the governor’s office about this? No. Not yet.
Have they talked to state officials who implement TennCare — the state’s Medicaid program for the uninsured poor (which uses healthcare.gov to help people find insurance plans and subsidies)? No. But they’ll probably come to us.
How will this affect the 36,000 or so Tennesseans who have already purchased insurance through the federal exchange? It isn’t clear.

Well, shouldn’t it be clear before you go and make them criminals after the fact? What about the people who go along with you and decide not to buy health insurance? When the federal government imposes a fine, will the state be there to pay it? Or defend against it? The ACA allows that fine to be taken from federal tax refunds. How will this law affect them?

My gut tells me that Beavers and Pody don’t believe this bill will ever become law. They introduced it as a way to fend off primary challengers from the right. But it begs the question if my insurance is the same as your insurance, why does it matter where either of us bought it?