Abstract
State legislative opposition to President Obama’s healthcare reforms invites renewed attention to the dynamics of power sharing and the allocation of sovereignty in the U.S. federal constitution. Between 2010 and early 2016, 22 state legislatures enacted laws and measures challenging or opting out of broad health reforms related to mandatory provisions of the Patient Protection and Affordable Care Act (PPACA). Some scholars have seen in these bills a resurgence of the doctrine of nullification, discredited because of its historical associations, specifically with those of secession, Jim Crow and Massive Resistance. Others take a more nuanced view and argue that the so called “Health Care Freedom Acts” were pragmatically designed to trigger challenges to the PPACA that can work within the contemporary framework of constitutional orthodoxy. This paper analyses the language of the Health Care Freedom Acts and compares them with the Massive Resistance resolutions to enquire whether states have learned from the lessons of the past to develop more successful strategies for challenging the unwanted reach of federal law and regulation.
Keywords:
right to health; federalism; Obamacare; cooperative; United States