At long last, the day is here: we’ll finally find out whether the power of Congress under the Commerce Clause has any restriction whatsoever, or whether it truly extends to all economic activity and inactivity. We’ll be adding to this story all day with links and updates from other sources, as well as participating in live coverage at Redstate and National Review (scroll down).
One issue that particularly impacts the states in the wake of a ruling is the presence of “sunset clauses” in those states which passed exchange approval legislation in advance of the ruling. These clauses are written differently and may have to be litigated in some circumstances should the Court deliver a partial strikedown today. Here’s a list of several states which included those clauses in their bills, as well as links to the legislation itself:
“Section 5-25. Federal action. This Law shall be null and void if Congress and the President take action to repeal or replace, or both, Section 1311 of the Affordable Care Act.”
“Unless the Federal Act is repealed or is held to be unconstitutional or otherwise invalid or unlawful, perform all duties that are required of the Exchange to implement the requirements of the Federal Act.
(f) If the Federal Act is repealed or is held unconstitutional or otherwise invalid or unlawful, define by regulation “qualified health plan” for the purposes of this act.
2. The Board may:
(a) Adopt regulations to carry out the duties and powers of the Exchange;
(b) Prepare special reports concerning the Exchange for the Governor, the Legislature and the public; and
(c) Contract for the services of such legal, professional, technical and operational personnel and consultants as the execution of its duties and powers and the operation of the Exchange may require.”
“If section 1311 of the federal Patient Protection and Affordable Care Act [Pub. L. 111-148], as amended by the federal Health Care and Education Reconciliation Act of 2010 [Pub. L. 111-152], is repealed by Congress or otherwise rendered invalid, in whole or in part, by a final judicial decree or if the state is granted a federal waiver for the health benefit exchange requirement before or after the establishment of the North Dakota health benefit exchange, section 1 of this Act expires as of August first following the next regular legislative session after the effective date of the repeal, invalidation, or federal waiver unless the legislative assembly takes specific action to extend that section of the Act.”
“That the provisions of this act shall expire on the effective date of (i) a final, nonappealable 2295 order of a court of proper jurisdiction invalidating the Patient Protection and Affordable Care 2296 Act, P.L. 111-148, as amended by the Health Care and Education Reconciliation Act of 2010, P.L. 2297 111-152, or (ii) federal legislation repealing such Act.”
West Virginia:
“In the event any portion of the Federal Act or of any regulation or other guidance issued thereunder is legislatively or judicially invalidated and rendered of no effect in this state, the board shall immediately issue a bulletin setting forth its legal opinion as to the effect of such legislative or judicial action on the legal status of the corresponding provisions of such act, regulation or guidance as set forth in this article or in rules promulgated hereunder; the board shall also issue recommendations to the Legislature for amendments to this article necessitated by such judicial or legislative action.”
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Benjamin Domenech is the founder and publisher of The Federalist and a senior fellow at The Heartland Institute.
