S.C. Senate to debate proposed state law challenging constitutionality of Obama national health care plan

  • Posted: Wednesday, June 5, 2013 12:14 a.m., Updated: Wednesday, June 5, 2013 7:54 a.m.
A draft copy of the 21-page of a Health and Human Services Department form proposed for use to apply for low-cost insurance from Medicaid or the Children's Health Insurance Program is photographed in Washington, Tuesday March 12, 2013.

A cohort of conservative lawmakers in Columbia would like to respectfully disagree with the U.S. Supreme Court.

The group is arguing that President Barack Obama’s health care plan isn’t constitutional, or at least it shouldn’t be in South Carolina.

That’s why, in the final days before the General Assembly breaks for the year, the state Senate is scheduled to take up a bill that would nullify the federal Patient Protection and Affordable Care Act in South Carolina and penalize individuals and groups that try to enforce it.

The bill passed the House of Representatives in May, but final approval by the Senate isn’t a foregone conclusion.

“I support the concept,” said Sen. Sean Bennett, R-Summerville, but “I’ve got some issues with the bill as it’s written.”

The Legislature is scheduled to break for the year on Thursday.

What does nullification bill say?


House Bill 3101, also called the “South Carolina Freedom of Health Care Protection Act,” would “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.”

What does that mean?


In plain language, the bill would prohibit and penalize individuals, companies and state agencies from enforcing parts of the federal law if the attorney general determines that the law harms a person or business. It also would offer a tax break to any citizen who is fined by the federal government for not enrolling in a health insurance plan, a requirement under the Affordable Care Act.

A full copy of the proposed bill is available online.

Can states declare federal laws unconstitutional?


Many constitutional scholars argue that they cannot. The Supremacy Clause of the U.S. Constitution establishes U.S. law as the “supreme Law of the Land.”

There are different interpretations of the Constitution, though. House Bill 3101 cites the Constitution’s 10th Amendment in support of its attempt to nullify the Affordable Care Act. The 10th Amendment, part of the Constitution’s Bill of Rights, declares, “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.”

Has this ever happened before?


South Carolina has a history of nullifying federal laws dating back to the 1820s, when state lawmakers attempted to nullify federal tariffs. The Nullification Crisis of 1832 nearly ended in battle between the federal government and the Palmetto State. Some historians say this crisis laid the groundwork for the Civil War.

If House Bill 3101 is signed into law, it won’t be the first time in modern history a state has nullified federal law. For example, Colorado voters passed a Marijuana Legalization Amendment last year that makes the drug legal in that state, despite a federal ban.

What’s next?


The Senate would have to pass the bill and Gov. Nikki Haley would need to sign it for House Bill 3101 to become state law.

The Senate is scheduled to debate the bill before it breaks for the year Thursday.

Haley’s spokesman evaded a question Tuesday about whether she would sign it, given the chance.

“The governor has … been very clear about her priorities this session — blocking Obamacare’s Medicaid expansion, restructuring and ethics reform,” Haley spokesman Rob Godfrey wrote in a email. “The first is done, and it is now time for the Senate to finish the other two.”

If passed, can the state legally enforce it?


Critics of the nullification bill believe that the bill will inevitably be challenged in court if it is signed into state law, especially since the U.S. Supreme Court ruled in 2012 that the Affordable Care Act is constitutional.

“Even the proponents of this nullification deal realize it will cost the state more money to go to court over this,” said Rozalynn Goodwin, a lobbyist for the South Carolina Hospital Association.

What does it mean for state agencies affected by the Affordable Care Act?


Agencies that administer federal entitlement programs to the poor are making plans to comply with the federal health care law, not knowing the fate of the nullification bill in the Legislature.

“There are a lot of mandates in there and we’ve got to follow the mandates,” said Tony Keck, director of the state’s Medicaid agency.

Many of the Affordable Care Act’s major reforms become effective Jan. 1.

A spokeswoman for the state Department of Social Services said DSS is following the state Medicaid agency’s lead on this issue.



Reach Lauren Sausser at 937-5598.

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