What are some of the issues of federalism raised by the recently passed Health Care Reform Act and how this could be resolved by the Federalism Restoration Amendment?

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pohnpei397 | College Teacher | (Level 3) Distinguished Educator

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I assume that you are asking about the Affordable Care Act, better known as “Obamacare”, which was passed in 2010 and which is starting to be implemented today.  I further assume that the proposed amendment you are asking about is the one in this link.

The term “federalism” refers to the relationship between the state governments and the national government.  In our federal system of government, both the states and the national government have certain rights and powers given to them by the Constitution.  Neither level of government can infringe on the other’s rights.  If one level of government appears to be infringing on the rights and powers of the other, we have a potential issue of federalism.

With regard to Obamacare, the main issue of federalism has to do with whether the national government can require the people in the various states to buy health insurance policies.  There was also an issue as to whether the federal government could take back Medicaid money from states that refused to expand that program, but that issue has been settled by the Supreme Court in favor of the states. 

One of the main features of Obamacare is that it requires every American to have some sort of health insurance.  If they do not obtain such insurance, they can be forced to pay a tax penalty.  This is the main issue of federalism today.  The Supreme Court has already said that Congress cannot use its power under the Commerce Clause to force individuals to buy health insurance.  However, it did say that Congress could impose tax penalties on people who do not buy health insurance as part of its power to tax.  This is the major issue of federalism that is connected to Obamacare today.

The proposed Federalism Restoration Amendment would specifically ban this practice.  It would state that the Congress cannot mandate that anyone buy health insurance.  It would also say that Congress could not tax any economic activity that happened within a state (rather than between states).  This would prevent Congress from levying a tax on people who declined to buy health insurance since that choice happens within a given state.

Thus, the proposed amendment would solve the main issue of federalism that is connected to Obamacare.  It would ensure that the federal government would no longer have the power to enact a law such as Obamacare.

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