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The state rights legislation against the ACA: a taxonomy

Sat, September 2, 4:00 to 5:30pm, Westin St. Francis, Hampton


In the last six years, states have been the protagonists of a renewed push for sovereignty that involved the enactment of different types of legislation to avoid the implementation of certain provision of the Affordable Care Act (ACA). The literature has upheld the legislative push against the reform as “capable of contributing under certain conditions to safeguarding federalism principles.” (John Dinan, 2010). The legislation introduced across the 50 states between 2011 and 2014 has been collected by the National Conference of State Legislatures in two databases (one for 2011-2013 and one for 2014) available to the public on its website. The most significant unifying characteristic of these laws is their tendency to phrase objections to federal policy, or assertions of state authority, in constitutional terms. In light of this, this research presents a taxonomy of state legislative measures against the ACA classified according to the constitutional provisions they invoke and identifies the following categories:
1. Nullification bills
2. Health Care Freedom Acts
3. Interstate Health Care Compact
4. Call for art. V Constitutional Convention
5. Anti-commandeering bills
This paper analyzes the main characteristics of each type of bill and discuss the origins, constitutional controversies and legal theories that surround them in an effort to understand the intentions of their proponents and the implications for American federalism. More importantly, this paper seeks to understand to what extent ideological polarization affected the polarization of constitutional understanding in the state legislatures. Can state legislative measures against the ACA be interpreted as a push for constitutional change?
This paper argues that state legislators have increasingly used “constitutional politics” to legitimize their claims and questions to what extent such legislation represents the first blush of an emerging constitutional moment in the US.