A constitutional amendment empowering three-fifths of the state legislatures to repeal the Affordable Care Act (ACA) and other federal laws and regulations earned the approval of 43 state delegations at the first full simulation of an amendments convention convened under Article V of the U.S. Constitution.
The 137 delegates representing all 50 states at the Convention of States Project (COS), spearheaded by Citizens for Self-Governance, approved six amendments in Williamsburg, Virginia on September 23.
Were the simulated convention real, amendments winning the approval of at least 26 state delegations would require subsequent approval from three-fourths of all 50 states, or 38 states, to become part of the Constitution.
Delegates overwhelmingly approved an amendment to “[G]ive the states (by a 3/5ths vote) the power to abrogate any federal law, regulation or executive order,” the COS website states.
“The Legislatures of the States shall have authority to abrogate any provision of federal law issued by the Congress, President, or Administrative Agencies of the United States, whether in the form of a statute, decree, order, regulation, rule, opinion, decision, or other form,” reads a draft used during the simulation.
Could Repeal Obamacare, Mandates
Were a real convention to propose this amendment and it were ratified, 30 states could repeal the ACA and any federal directives implementing the law.
In its rules implementing ACA, HHS issued the contraceptive mandate requiring employers to violate their religious beliefs by helping the federal government provide contraception to employees. A unanimous U.S. Supreme Court ruling in Zubik v. Burwell in May 2016 instructed federal appellate courts to reconsider the mandate’s constitutionality in light of the government’s admission it unnecessarily restricts employers.
The Centers for Medicare and Medicaid Services has rejected requests from several states seeking to implement cost-sharing thresholds and work requirements for individuals enrolled in Medicaid expansion programs under ACA.
If Only …
West Virginia state Sen. Robert Karnes (R-Upshur) was one of two delegates from his state to participate in the simulation.
Karnes says states could have avoided the ACA mandates were the simulation’s amendment part of the Constitution in 2010, when President Barack Obama signed the act into law.
“The abrogation proposal would allow the states to reject federal acts such as Obamacare,” Karnes said.
The mock amendment would enable states to reassert their authority over health care policy, Karnes says.
“I believe in one manner or another more than 30 states sued to stop Obamacare,” Karnes said. “That means if the convention had been real and the proposal ratified, those same states could ‘abrogate,’ or repeal, Obamacare. Health care policy would then return to being solely within the purview of the state legislatures.”
State Rep. Jim Allen, one of three Wyoming delegates to the COS simulation, says states could use an abrogation amendment to block partisan health care bills.
“Votes were split along party lines when Obamacare passed,” Allen said. “The abrogation clause would have provided a check against implementation when Democrats controlled both houses and the presidency.”
Authorized by Constitution
The Article V convention process is one of two methods the Constitution authorizes for proposing amendments. Congress must call a convention when 34 states submit applications calling for a convention on one or more subjects. Each state would have the authority to select delegates and recall any who fail to follow convention rules.
Advocates for an Article V convention are considering several amendments, including a balanced budget requirement, term limits on Congress and the Supreme Court of the United States, and procedures to reduce federal regulations.
Kyle Maichle ([email protected]) is The Heartland Institute’s former constitutional reform project manager.
Michael Hamilton, “Proposed Article V Amendment Would Limit Federal Health Care Spending,” Health Care News, The Heartland Institute, November 2016.
Rob Natelson, “A Brief Assessment of the Proposed Convention Rules Adopted by the Assembly of State Legislatures,” The Heartland Institute, August 17, 2016.
Michael Hamilton, “Supreme Court Protects Employers from Coercion, Fines in Insurance Mandate Case,” Health Care News, The Heartland Institute, July 2016.
Image via Thinkstock
This article has been updated.