Individual Mandate, Health Exchanges Taken to State Ballots

Votes in five states on the individual mandate and health exchanges are set for next week.
by | November 2, 2012

For full election coverage and analysis, go to Governing's 2012 Election Center.

In a sense, the Affordable Care Act (ACA) will be up for reelection this Election Day—and not just in the presidential race. Voters in five states are being asked whether they want to place restrictions in their states on some of the law’s most central provisions.

Four states (Alabama, Florida, Montana and Wyoming) have ballot measures that effectively prohibit the individual mandate from being enforced. Though the language varies, each would forbid any state or federal law from compelling individuals from participating in the health insurance market. All four initiatives would amend the state’s constitution.

Though the amendments demonstrate the lengths to which the ACA’s opponents are willing to go to halt its implementation, legal experts seem to agree that they would have little teeth in stopping the individual mandate from taking effect. Why? Because of the Constitution’s Supremacy Clause, which says that federal law supersedes state laws. With the Supreme Court’s decision to uphold the mandate in June, the ACA remains the law of the land.

The only way the amendments would have an impact, according to legal analysis, would be if Republican presidential candidate Mitt Romney wins the White House and successfully repeals the law. Romney has said during the campaign that he supports a state-by-state approach to health-care reform, like the Massachusetts law he signed as governor that included an individual mandate, rather than a federal mandate.

“Due to the recent U.S. Supreme Court decision upholding the individual health insurance mandate, this amendment will likely do very little,’’ said the Gunster law firm in Florida, which analyzed that state’s initiative. “The amendment could prevent the state from implementing a Massachusetts-type health care law if the federal health care law is repealed.”

Len Nichols, director of the Center for Health Policy Research and Ethics at George Mason University, affirmed that reading in an email to Governing.

“According to our constitution, federal law trumps state law, as long as it is constitutional. So, these ballot votes are politics, pure and simple,” he wrote. “But they would create political edifice against ‘going back’ if the ACA is repealed, which may be the larger point.”

There is one ACA-related ballot initiative that could have a tangible effect on policy: Missouri voters will decide whether they want to prohibit the state from establishing a state-run health exchange under the law.

The question would forbid the establishment of an exchange, unless it were created by another ballot initiative, a legislative act or a veto referendum.

According to the Kaiser Family Foundation, which is tracking exchange development in all 50 states, the initiative is likely a result of Republican discomfort over Gov. Jay Nixon moving ahead of exchange planning without permission from the legislature. Nixon created an exchange coordinating council in 2011 to begin developing the exchange while waiting for legislative approval. Another executive body applied for and received a $20.8 million federal grant to create the exchange’s technological infrastructure, but the State Sentate has not approved its use.

The exchange initiative, supporters say, would prevent Nixon from establishing an exchange via executive order—as governors in New York and Rhode Island have done. Nixon has said, however, that he would not take such action, according to Kaiser Health News. Some political analysts view the measure as an effort to shore up Republican support in a state where the ACA is unpopular.

"President Obama and the health care law in general are not popular in Missouri," George Connor, head of the political science department at Missouri State University, told Kaiser Health News. "Any opposition to President Obama on health care by anybody gets you bonus points with the voter."

If Missouri does not set up a state-run exchange, the federal government will establish and run an exchange for the state. Federal officials have said they are expecting to run exchanges in up to 35 states in 2014, when they open for operation, though Missouri will have been the only one to choose that route via popular vote.

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