Backlash from Health Care Law is a Good Sign for Freedom

Sometime in the future, historians may point to the passage of the Patient Protection and Affordable Care Act (ACA) as the time when the centralizing power of the federal power reached its peak. The resulting push back from citizen activists and officials in the states set off a wave of successful efforts to reduce the size and scope of government generally, and the federal government, specifically.

Consider what has already happened:

More than half of the states have taken an argument with the federal government all the way to the U.S. Supreme Court. In late March, the Court heard three days of oral argument in a lawsuit brought by Florida and 25 other states. The Court, which has never spent that much time on a single case, heard testimony on whether the law is an unconstitutional expansion of Medicaid. But the key issue was whether a government can require citizens to purchase something, in this case, health insurance, simply because they are alive. The Court should be issuing its ruling in mid- to late June.

States have also taken up political action. Legislators in 40 states have introduced “health freedom acts.” Generally, such acts would forbid a state from enacting a compulsory, single-payer healthcare system. It also provides leverage for states that have challenged the ACA in court. Seven states have enacted such an act.

Legislators in 18 states have introduced legislation to enact interstate compacts on health care, and six have enacted it. The compact would, if Congress consents, transfer responsibility for overseeing healthcare from the federal government to the states. Each state in the compact would be free to regulate health care and health insurance as its own people and Legislature saw fit.

Another key issue is the question of “health insurance exchanges.” While the ACA calls for states to create these politically driven and highly regulated “marketplace,” only 13 have done so. Most have been reluctant to do so, for various reasons. The exchanges present the states with financial risks, for starters. Even more significantly, however, the exchanges are part and parcel of the individual mandate. In a sign that the ACA continues to be controversial, gubernatorial candidates in New Hampshire have of late been sparring over the question of whether that state should enact an exchange.

The American founders called not only for checks and balances within the federal government, but also for the states to have a significant role. As James Madison wrote in Federalist #45, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite,” covering “the ordinary course of affairs” that citizens would address in their daily lives.

As Madison suggested, a state government can be oppressive to freedom. But as the response to the ACA is bearing out, the existence of many states is good for the cause of freedom.

John R. LaPlante as a senior fellow of the Free Market at the Center of the American Experiment and a contributor to