States Should Absolutely Refuse to Set Up Obamacare Exchanges
From NRO, where there is more:
Proponents of Obamacare are making one argument that some conservatives may find appealing — namely that it is much better, from a states’ rights point of view, to set up state-based exchanges than to let the feds come in and do it themselves. This argument is absolutely wrong. Allowing your states to be deputized as instruments of federal policy is just as bad as bowing to federal commandeering of state agencies, which is unconstitutional.
Let’s begin with the principle that the federal government is not allowed to command states or their officials to do anything. That was settled in the two modern commandeering cases, New York v. United States (1992) and Printz v. United States (1997). The federal government has gotten around that through a variety of schemes under the general category of “cooperative federalism.” The Supreme Court has generally taken a permissive attitude of these schemes, only because the states supposedly retain freedom of choice, “both in theory and in fact.” But it is increasingly clear that their choice is not really free, because they are penalized if they don’t comply with the federal program.
This problem is clear with programs like Medicaid: The feds tax money away from the states (or they borrow it from the capital markets) and then offer to give it back to the states on condition that they comply with federal preferences.
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