The South Carolina House passed Bill 3101 in May, 2013; it is now before the state’s Senate, as they did not vote on it before the Senate adjourned for the summer.
If passed by the Senate, and signed into law by Governor Nikki Haley, this bill will make it illegal for any state employee or agency to attempt – or assist in an attempt – to implement the federal Patient Protection and Affordable Care Act, otherwise known as Obamacare.
Bill H. 3101: Freedom of Health Care Protection Act
The proposed legislation gives the Attorney General of South Carolina powers to prevent agencies and employees of the state from aiding any agency or employee that enforces or attempts to enforce the PPACA.
This bill empowers the Attorney General to sue such businesses or employees whenever he has reasonable grounds to believe those businesses or employees are causing harm to people or businesses by assisting in the implementation of Obamacare. The Attorney General can also apply for an injunction to stop such implementation.
The bill also provides that any resident forced to pay higher federal taxes because of non-compliance with the ACA will be entitled to a corresponding deduction on taxes owed to the state.
Bill 3101 also prohibits the state or any local government from purchasing insurance for employees on a federal health insurance exchange.
Constitutional Authority for the Freedom of Health Care Protection Act
The bill’s preamble cites sections of the U.S. Constitution in making the case that the proposed legislation is legal and constitutional, while the ACA is unconstitutional.
The Tenth Amendment states any powers under the Constitution, not specifically given to the federal government or prohibited to the states, are reserved to the states or, the people. The South Carolina drafters of the bill argue that health care was never delegated to the federal government, and therefore it falls under the jurisdiction of the states.
Article VI, Clause 2, known as the Supremacy Clause, states that federal law is the supreme law of the land. That means federal legislation takes precedence over state or other laws when there is a conflict. However, state lawmakers argue federal law only takes precedence over South Carolina law when the subject matter properly falls to the federal government. Since health care was never specifically given to the federal government in the Constitution, the supremacy clause has no relevance. The state takes the position the Patient Protection and Affordable Care Act is unconstitutional.
The bill’s preamble also states the United States Supreme Court violated Article 1, Section 1 of the Constitution. That section says all legislative powers shall be vested in the Congress, not the executive branch. The drafters state the court was wrong to refer to “penalties” under the Affordable Care Act as “taxes” when the lawmakers described them as penalties under the ACA. By holding the penalties were taxes, the justices usurped what was mandated by the Constitution for Congress to decide. Therefore the Supreme Court’s decision was unconstitutional and can be ignored.
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