The Washington Post

How long can states block Obamacare?

Virginia Attorney General Ken Cuccinelli. (Marvin Joseph/The Washington Post)

Virginia’s Ken Cuccinelli begs to differ (subscription required):

In a brief interview at the Republican Attorneys General Association meeting, Cuccinelli said it would be “contrary to the law” not to implement it. But he pointed out that it might not be easy for the federal government to force states to comply if they continued to resist.

“It’s not like there’s criminal penalties out there — it becomes a power struggle,” he said.

Cuccinelli noted that it would not be the first time that states have tried to obstruct federal laws, pointing out that states resisted complying with the Alien and Sedition Acts and fugitive slave laws.

“There have been periods of time when states have just thrown their hands up and said, ‘We’re not going to do this,’” he said. “It’s still possible, but it’s outside the expected legal structure.”

So, far some states have gone to great lengths to block the health reform law’s implementation. Florida and Louisiana have arguably been the most aggressive opponents, the only states to refuse all federal funds to set up a state-based health insurance exchange. And their officials will often cite the Supreme Court case in explaining their obstruction: Why not wait and see whether the law will stand before laying its foundation?

The Supreme Court hears oral arguments on the Affordable Care Act later this month, with a ruling expected by early summer. If the justices uphold the law, that could make Cuccinelli’s refuse-to-implement strategy one that’s politically difficult to pursue. That would become especially true come 2014, when the federal government rolls out some very concrete benefits such as health insurance subsidies and expanded Medicaid coverage. Making those benefits difficult to access could be a tough political position to take — especially as they’ll be rolling out to residents in neighboring states such as Maryland. That might be why you see Florida’s Bondi’s concession: If the Supreme Court finds health reform constitutional, it’s the states’ job to implement it.


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