The States Can Repeal Obamacare

 

We propose that the States repeal Obamacare by amending the United States Constitution using the process described in Article V.  Article V empowers the states to propose and then ratify amendments to the U.S. Constitution without the consent of the federal government.  Since the U.S. Constitution is the primary source of law in the United States, such an amendment would unassailably repeal Obamacare. 

 

Thus the States have the ability to repeal Obamacare by proposing then ratifying Amendment 28 to the United States Constitution:

 

 

Amendment 28 – Repeal of Public Law No. 111-148.

 

Public Law No. 111-148, The Patient Protection and Affordable Care Act, and any amendments thereto, are repealed.

 

On January 19, 2012, the Colorado State House of Representatives passed a first-in-the-nation Resolution applying to Congress under Article V to call a Convention for proposing Amendments to propose the Obamacare-repealing amendment.  See the Resolution here.  The Resolution was unanimously supported by Republicans (the lone Republican No vote was a mistake).  Also, one Democrat supported the Resolution.  A video of the amazing two-hour debate can be seen here (click on archived video for Jan 19, 2012; the debate starts at about 26 minutes).

 

We are opening a new front in the battle to repeal Obamacare.  Congress, Obama, and the Supreme Court will be bypassed and Obamacare will be repealed using the ultimate weapon available to the states: a state-initiated and ratified amendment to the United States Constitution that essentially declares, “Obamacare is repealed.”  The amendment, as written above, is simple to understand, effective, and constitutionally bulletproof.  With polls consistently showing the majority of voters want Obamacare repealed, now is the time for Republican State Legislators across the country to join the effort and support the direct constitutional repeal of Obamacare.

 

Read about the effort to repeal Obamacare through a Constitutional amendment in the Washington Examiner.

 

The original 13 colonies enacted the basic framework of today’s federal government through ratification of the U.S. Constitution.  However, recognizing the potential for a centralized federal government to overreach, Article V of the U.S. Constitution maintained a process through which the states could amend the U.S. Constitution without the cooperation of the federal government.  Since the U.S. Constitution is the supreme law of the land, the state-led Article V process is essentially a safety valve giving the states ultimate control of the entire federal government including the courts, Congress and the executive branch.  The safety valve has never been used, although on occasion (the balanced budget amendment drive of the 1980’s and the drive to pass the 17th amendment in the early 1900’s) the mere threat of using it has spurred the federal government into action.

 

The passage of Obamacare (The Patient Protection and Affordable Care Act) is an act by the Federal Government in direct opposition to the will of the people.  Never before has such a fundamentally nation-changing law been enacted by a single party (the Democratic party) against the will of the citizenry.  This betrayal of trust must be undone.  Thus, we are advocating for a State-led effort to amend the U.S. Constitution to repeal Obamacare. 

 

There has been a steady drumbeat from the right arguing for the repeal of Obamacare.  The conventional wisdom is that full repeal may take place in January 2013, after the next election cycle, if the Republicans can take the Senate, keep the House and win the Presidency.  Although we support such a course of action, we also recognize that 2013 is a long way away and any number of events could derail the effort to repeal Obamacare.  And if Mr. Obama is reelected, he would most likely veto any repeal bill, and it is unlikely that Republicans could muster the two-thirds majorities necessary to override such a veto.  Court challenges, 10th amendment challenges and state law protests may eventually prove to be somewhat effective, but these may also take years to settle; even then they will not likely be in the form of a full repeal – only a patchwork of cancelled provisions.  Although these efforts deserve our support, much more can be done now to repeal Obamacare.

 

This is why we are advocating immediately beginning the process of repealing Obamacare through a State-led effort to amend the U.S. Constitution with the goal of repealing Obamacare by November 2012.

 

The Amendment would simply erase Obamacare, just as the 21st Amendment repealed the prohibition of alcohol.  As the supreme law of the land, a constitutional amendment repealing Obamacare would be equally unassailable. 

 

Article V states that upon “Application of the Legislatures of two thirds of the several States, [The Congress] SHALL call a Convention for proposing Amendments.”  The use of “shall” means that Congress has a constitutional duty to call the convention.  It does not have the option to say no.

 

The “Convention for proposing Amendments” can only propose amendments.  Any proposed amendment would have to be ratified by 38 states to go into effect.  So myths and irrational fears of a “runaway convention” are completely unfounded.  The “Runaway Convention” myth is dispelled here.

 

Please join the fight to repeal Obamacare and work toward introducing a resolution in your state applying to Congress for a “Convention for proposing Amendments” to propose an amendment directly repealing Obamacare.

 

The Constitutional Basics

 

1.         Article V of the U.S. Constitution provides for a mechanism whereby the states may amend the U.S. Constitution without the consent of Congress or the President.

 

2.         The U.S. Constitution, as the supreme law of the land, supersedes all State and Federal laws and regulations.

 

3.         Therefore the following amendment to the U.S. Constitution, enacted by the states, would repeal Obamacare:

 

Amendment 28 – Repeal of Public Law No. 111-148.

            Public Law No. 111-148, The Patient Protection and Affordable Care Act, and any amendments thereto, are repealed.

           

Feasibility of the Plan 

 

Currently, 28 states have Republican-controlled legislatures (if Nebraska’s non-partisan legislature is included).  Two more states have Republican-controlled Houses, a Republican Executive and an even split in the Senate (Alaska and Virginia).  That makes 30 states where there is a reasonably good chance of passing the resolution through both chambers. 

 

Four more states could join if all Republicans and only a couple of Democratic legislators vote for the resolution:  Iowa would need 1 Democratic Senator to agree, Colorado and Oregon would only need three Democratic legislators to switch, and Nevada would need 6 Democratic legislators to switch. 

 

If all of the Republican-controlled states join the effort, the pressure on the US Congress and on the close states such as Iowa would be tremendous.  The specter of a convention for proposing amendments would probably force Congress into repeal and Obama (if he were to be reelected) to withhold a veto.  If Congress and the President do not act, the pressure would be brought to bear on states such as Iowa, Colorado, Oregon, and Nevada to join the effort. 

 

Once the amendment is proposed, each state legislature would effectively be giving Obamacare an up or down vote.  Given Obamacare’s unpopularity, there is a good chance at least the 38 states needed would vote for repeal by ratifying the amendment.

 

 

 

 

 

Notable features of The Plan:
  • Article V states that upon “Application of the Legislatures of two thirds of the several States, [The Congress] SHALL call a Convention for proposing Amendments.”  The use of “shall” means that Congress has a constitutional duty to call the convention.  It does not have the option to say no.
  • The Convention to Propose an Amendment to the U.S. Constitution would be a gathering of delegates determined by the State Legislatures.  The U.S. Congress would not run or control the Convention to Propose an Amendment to the U.S. Constitution.
  • The President is completely uninvolved.  There is nothing the Executive branch can do to stop the process beyond trying to persuade against the amendment.
  • The Judiciary is completely uninvolved.  Although they may have input in the process, they have no input into the content of any amendments.  In other words, they cannot declare the Constitution unconstitutional.
  • A state-initiated constitutional amendment has never been completed.  States have previously applied to the U.S. Congress for a Convention to propose Amendments to the U.S. Constitution, but the two-thirds threshold has never been met.
  • States are far more responsive to constituents than the U.S. Congress.
  • There is nothing the Federal Government could do to get around the repeal short of re-enacting Obamacare.  However, this would be impossible without a Democratic supermajority in the U.S. House and Senate.
  • The 21st Amendment, which repealed the 18th Amendment (prohibiting alcohol), was ratified in only 288 days after Congress proposed the amendment – and that was through the state convention process.

 

Strategy Notes
  • The amendment - Keep simple and focused.
    • Simple means broad-based support.  Any amendments in an attempt to expand the amendment’s scope may erode support.
    • Emphasize that we are not necessarily against any federal involvement in healthcare reform, just Obamacare, which does not enjoy popular support and runs counter to the will of the people.
    • Any federal actions should be limited, targeted and measured.
    • The states, as incubators of innovation, should be free to control their own healthcare systems.
    • Keeping the amendment simple and only repealing Obamacare avoids handcuffing choices of future generations.
    • Focusing only on repealing the existing law reduces the potential for negative unintended consequences of a more elaborate bill.
  • As a state level initiative, Alaska has as much a say as New York, so liberal strongholds are not required for passage.
  • This is a third front in the battle against Obamacare (the first front is traditional repeal in the U.S. Congress, the second is challenging Obamacare in the courts).
    • Though we hope that Obamacare is repealed by a Republican-controlled Congress and passed by a Republican president in January of 2013, such action is not guaranteed.
    • Such a repeal requires:
      • A Republican to win the Presidency in 2012.
      • Adequate Republican gains in the Senate in 2012 to gain control of the Senate.
      • The willingness of the new Republican majority in the Senate to pass repeal despite most likely not having a filibuster-proof majority.
      • The willingness of the new president to push for and sign a bill repealing Obamacare.
    • We believe the repeal of Obamacare is critical to the welfare of the United States and thus advocate pushing forward in every way possible to repeal Obamacare.