Health Care Federalism: The Role of States in Health Care Reform

There is a long history in the United States of state resistance, or nullification, of controversial federal programs, including the Alien and Sedition Act in 1798, the “Tariff of Abomination” under President Andrew Jackson in 1832, school desegregation in the aftermath of Brown v. Board of Education decision, and the USA PATRIOT Act after 9/11, to name a few. In each of those instances, federal authority ultimately trumped state resistance. Ample scholarly commentary has considered whether those disputes also serve a salutary purpose, giving voice to dissonant views, contributing to the marketplace of ideas, and reinforcing a decentralized system of government.

Amid ongoing current federal health care reform debates, several state governors, legislators, and activists, have advocated similar acts or statements of defiance. The objections focus on the proposed “individual mandate,” which would require all citizens in the United States to purchase health insurance. Opponents proposed state constitutional amendments or legislative resolutions, declaring that the federal individual mandate would have no effect within their states. The objections are grounded in the Tenth Amendment to the U.S. Constitution, which reserves broad state powers, individual rights to be free from compelled purchases or contracts, and policy objections to single-payor, government health care. Any such state enactments would almost certainly be legal nullities. Nevertheless, the ongoing resonance of the proposals has significant implications for federal-state relations and health care delivery. My talk will identify key provisions of the federal reforms that call on state participation and discuss the effect of state resistance.