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Is South Carolina Nullifying Obamacare?

Not really.

12:36 PM, May 9, 2013 • By MICHAEL WARREN
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“South Carolina has passed a bill that criminalizes the implementation of Obama’s health care law reform law,” said HuffPost Live host Jacob Soboroff last week. The claim, from the Huffington Post and others, is that South Carolina is attempting to “nullify” Obamacare. But what the Republican-dominated South Carolina state house passed on May 1 doesn’t really nullify anything--not yet, at least. The legislation is more like a resolution, asserting that the state of South Carolina opposes the unconstitutional parts of Obamacare.

Nevertheless, the Republicans who drafted the bill seemed to have wanted to convey that nullification is exactly what they are doing. Here’s the bill’s introduction:

A bill to amend the code of laws of South Carolina, 1976, so as to enact the "South Carolina Freedom of Health Care Protection Act" by adding Article 21 to Chapter 71, Title 38 so as to render null and void certain unconstitutional laws enacted by the Congress of the United States taking control over the health insurance industry and mandating that individuals purchase health insurance under threat of penalty; to prohibit certain individuals from enforcing or attempting to enforce such unconstitutional laws; and to establish criminal penalties and civil liability for violating this article. 

The the truth is that the enforceable provisions of the bill in its current form don’t render the law "null and void." As Section 2 of the bill reads, “No agency of the State, officer or employee of this State, acting on behalf of the state, may engage in an activity that aids any agency in the enforcement of those provisions of the Patient Protection and Affordable Care Act of 2010 and any subsequent federal act that amends the Patient Protection and Affordable Care Act of 2010 that exceed the authority of the United States Constitution.” 

The problem is, the bill doesn’t specify what parts of Obamacare “exceed the authority” of the Constitution. Instead, it says that the general assembly has “the absolute and sovereign authority to interpose and refuse to enforce the provisions” of Obamacare that exceed Congress’s authority. The bill's chief sponsor, Republican Bill Chumley, says the bill "will do what it says" and allow the general assembly in the future to bar the state of South Carolina from enacting the unconstitutional elements of Obamacare. What elements would those be?

"We're going to take it on a case-by-case basis," Chumley told THE WEEKLY STANDARD, adding that the legislature would possibly have to pass additional laws in order to stop the implementation of Obamacare's unconstitutional provisions. He did not name any specific parts of the federal law that are unconstitutional and said the bill is chiefly defining the state's position on Obamacare.

"Some people have said it sounds more like a resolution," Chumley said.

Of course, nullification of a federal law by a state is illegal under the courts’ interpretation of the Constitution’s supremacy clause. It stands to reason that if South Carolina ever passed such a law, the courts would strike it down. Chumley disagrees with that interpretation, saying that the supremacy of federal law over state law only applies when those federal laws are constitutional.

"Has the Constitution been changed?" Chumley said.

According to the South Carolina Policy Council, a conservative think tank in Columbia, the provision giving “absolute and sovereign authority” to the general assembly would have one important consequence: It would take away from the executive branch the authority to, say, refuse the federal money earmarked for expanding Medicaid under a provision of Obamacare and give that authority exclusively to the legislature. The state’s Republican governor, Nikki Haley, has said she opposes this Medicaid expansion. The GOP also controls both houses of the general assembly. 

So what’s the big deal? Well, a day after passing the “nullification” of Obamacare, several of the house Republicans joined with Democrats to introduce another bill, one that appropriates the federal funds expected with Obamacare’s Medicaid expansion. Meanwhile, these Republicans are all on the record of supporting the “nullification” of Obamacare through their vote for last week’s relatively toothless bill. As Jerry Seinfeld might say, it’s the perfect plan.

For his part, Chumley is not among the sponsors of the Medicaid expansion fund bill and says he will "absolutely not" vote for it.

"I'm extremely disappointed in my friends who, I think, have been hoodwinked," he said.

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