NEW YORK ( MainStreet) While 2013 was the year of repeal, 2014 looks like it may become the Annum Nullificum. With the failure of efforts to defeat the Affordable Care Act at the federal level, opponents have taken their fight to the states. Several legislatures have proposed laws that would defeat implementation of the ACA either explicitly or in practice, setting the stage for more legal battles to come this year.
South Carolina and Georgia have taken the most direct route by attempting to nullify the ACA within their state borders outright. In South Carolina House Bill 301, titled the South Carolina Freedom of Health Care Protection Act , proposes to "render null and void certain unconstitutional laws enacted by the Congress of the United States taking control over the health insurance industry." It passed the state House of Representatives last spring and is scheduled for a final vote in the state Senate as early as this month.
The relatively short bill attempts to exempt South Carolina from the Affordable Care Act by forbidding its implementation. First, it bans all state and local employees from helping to enforce Obamacare or any future amendments to it. Second, it allows the state to ban anyone else from enforcing the law if the Attorney General "has reasonable cause to believe that a person or business is being harmed by implementation of the Patient Protection and Affordable Care Act." The Attorney General has full discretion regarding what constitutes "harm."
Finally, Bill 301 creates a tax deduction for anyone who violates the ACA "in the exact amount of the taxes or penalty paid the federal government." As a deduction rather than a credit this would only refund a portion of any fines paid by South Carolinians.
Georgia's similar bill, titled the Georgia Health Care Freedom and ACA Noncompliance Act , "provides that neither the State of Georgia nor any of its political subdivisions shall... undertake any action under the aegis of Section 2951 of the federal Patient Protection and Affordable Care Act of 2010 or a process established pursuant to such act."
Whether you agree or disagree with them, it is also almost certain that Georgia and South Carolinas' bills are unconstitutional. A state cannot nullify federal law, regardless of its local interpretation of the Constitution or the strength of its political disagreement. As a nation, we settled that question in 1865.
The place for states to challenge federal overreach is the Supreme Court, which upheld the constitutionality of the ACA back in 2012. Justifying your bill by declaring that the Supreme Court was wrong in its decision, as South Carolina's Bill 301 does in its preamble , might give politicians a great sound bite, but it has no legal effect.