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May 10 2011

Stop Wasting Money Implementing What Might Be an Unconstitutional Law

Hadley Heath

Congress may be focused on raising the debt limit, but Americans know the real issue is government's out-of-control spending. Increasing the legal limit for how much the government can borrow isn't even a band-aid for our fiscal problems. Some may argue that it's necessary to keep the markets functioning, but they won't function for long if the government keeps spending trillions more than it takes in.

Where to start for cutting government spending? Here's a candidate: How about we postpone implementing expensive new laws that may be unconstitutional and ultimately struck down by the Supreme Court? That seems like it should be bipartisan common sense.

Unfortunately, many recoil from such prudence when it is applied to the new health care law, popularly known as Obamacare. Yet they shouldn't. Implementing ObamaCare isn't just costing money at the federal level; it is straining state budgets, many of which are already over-stretched.

The federal government is in the process of creating dozens of new agencies, offices, and (hundreds of) IRS jobs to comply with the law, at an estimated cost of $473 million in FY 2012. States have their own burdens. Under ObamaCare, Medicaid programs will expand and a new "health care exchange" will operate in each state. Some states are already preparing the infrastructure for these reforms.

States recognize that their efforts to implement the new health care law may be a waste. That's one of the reasons why resistance to the one-year-old health care law is now stronger than ever. Forty-one states have introduced Health Freedom Acts in direct conflict with ObamaCare, 28 states are suing the federal government, and a handful have even rejected or sent back federal funding for the law's implementation.

Implementing the massive changes in the health care system created by ObamaCare would be burdensome enough without questions about the law's future. Yet the existing confusion makes it even more onerous for states. A February poll from Kaiser Family Foundation revealed that nearly half of Americans either weren't sure or believed the law was already undone by a ruling in Florida that the law was unconstitutional (and a successful bid by House Republicans to pass a repeal bill in their chamber).

Indeed, Judge Roger Vinson's January 31 ruling against the health law created confusion for even the most astute law experts. It was not until the defendants filed a "Motion to Clarify" that Vinson issued a stay on his own decision - on March 3 - and it became clear that implementation of the law could proceed.

Now the lawsuits (involving 28 total states as plaintiffs) are continuing down the slow slog to the Supreme Court. Several appellate circuits will hear cases in the coming months, but a final ruling from the Supreme Court may be as far as two years away.

During these next two years, states are left utterly torn about their next steps. Should they proceed with costly implementation even though they face budget crises or should they wait? Senator Kay Bailey Hutchison (R-TX) has attempted to offer states some much needed clarity in a bill called the Save Our States Act - a short piece of legislation that simply puts ObamaCare in time-out until the lawsuits are sorted out. Regardless of feelings toward the law, policymakers should recognize the merits of judicial challenges to it: The courts have never heard a case like these before (meaning these are cases of "first impression"), and many law experts predict a 5-4 ruling from the Supreme Court (one way or another), so clearly there are legitimate concerns about the law's constitutionality.

Opponents of ObamaCare would like to see the law completely repealed. That would save us roughly $725 billion over 10 years by repealing the new exchange subsidies and stopping implementation of the law at all levels. But our nation remains torn on this issue, and that fight will continue at least through 2012. In the meantime, we would be better off putting ObamaCare on hold and focusing on getting our fiscal house in order.

After all, what's the harm in waiting for judicial review? Not only would this allow time for our Constitutional system of checks and balances - it would be the wise and prudent thing to do, and may ultimately save us a lot of money.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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