There is a wave of opinion going around on the right that State governments should refuse to set up health insurance exchanges as required by the Affordable Healthcare and Patient Protection Act (ObamaCare).  Perhaps many conservatives are confused regarding which portions of ObamaCare actually violate the Constitution and are not thinking clearly about appropriate ways to nullify it; and I don’t necessarily agree that refusal to set up an exchange is part of an appropriate nullification process. I think it depends on how each State decided to nullify ObamaCare because they obviously need to follow their own laws. If, for example, a State nullified ObamaCare by making all portions of the Act unenforceable, then I think they would need to revisit that choice in order to do so.

I have little disagreement with the basic concept of an exchange. The disagreement I have with it in this instance is that in ObamaCare all other alternative marketplaces for insurance plans offered to the public have been prohibited and it is used as a means to ensure conformance to government requirements for basic coverage; which is one of the many identifiable overreaches of authority. The absence of a State exchange does not change the intended outcome. In fact, it allows the perpetuation of Federal control of the insurance market when the purpose of nullification in the first place is to reject encroachments upon State sovereignty and protect citizens from the affects. Thus, my take on this question is that it is probably within the interest of a State to set up an exchange. If they do not, the Federal Government will, and the State will have no influence on its nature and no impact on the problem.

My suggestion, which I think is probably more rational, is for States to set up their exchanges based on their own requirements even if they have to pay for it themselves; and they should be left wide open to intrastate commerce relating to health insurance plans that conform to State law. This allows individual insurance providers to offer the type of insurance coverage their customers want and State law allows without violating the constitutional portion of Federal law. The Federal Government has authority to regulate interstate commerce; and so it would be illegal for a provider in New York to offer non-conforming plans on the exchange set up in Mississippi. But it could offer plans that meet market demand in New York even if they do not meet Federal requirements. This is how to thwart Federal overreach within the bounds of State ability to reject it and protect their citizens from having their rights under the 4th and 5th Amendments violated, while simply refusing to cooperate at all wouldn’t be conducive to that end.

If we intend to hold our State governments to their duty to protect our rights, we need to be smart about it and do it in a way that has a real affect on the outcome.

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