Federalism and State Legislative Opposition to the Affordable Care Act: the Political Value of Legal Strategy
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Federalism and State Legislative Opposition to the Affordable Care Act: The Political Value of Legal Strategy ILARIA DI GIOIA A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy Birmingham City University February 2018 Faculty of Business, Law and Social Sciences ii Acknowledgments This dissertation is the result of four years of intense research and study. I have, throughout these years, taken significant time away from family and friends to be able to concentrate and arrive to the end of this journey. I could not have succeeded without their support and understanding. I am especially grateful to my other half, Aqeel, who always finds the way to cheer me up and to my parents, Aldo and Milena, who believed in me and provided the financial means to begin this extraordinary journey. This dissertation would never have been completed without the generous support of Birmingham City University that awarded a three years Graduate Teaching Assistant bursary and funding to attend at least five conferences abroad. I would also like to thank the American Politics Group of the Political Science Association and Prof. Philip Davies who believed in my project and funded a very productive research trip to the headquarters of the National Conference of State Legislature (NCSL) in Denver, CO. My data collection would have been much more difficult without access to the StateNet database kindly accorded to me by Richard Cauchi, Health Program Director at NCSL. A special debt of gratitude must be expressed to my supervisor Dr. Anne Richardson Oakes, always present and ready to offer invaluable insights and suggestions. I am likewise grateful to Prof. Julian Killingley who inspired my passion for the American Constitution back in 2008 (when I was an undergraduate Erasmus student) and also provided guidance and support all through this endeavor. Last, special appreciation is here expressed to Prof. Haydn Davies, Head of the School of Law at Birmingham City University for having created a fantastic working environment; his humility and intelligence are exemplary. Any errors of fact or misinterpretations, of course, are solely my responsibility. iii Abstract In the last six years, the American states have been the protagonists of a renewed push for sovereignty that has involved the enactment of different types of legislation to avoid the implementation of the federal health law within the state. George Mason University’s professors Paul L. Posner and Timothy Conlan have identified the causes of state resistance in the ideological conflicts reflecting growing political polarization in Washington: “Federal programs have become a new battleground for states to demonstrate their fidelity to very different ideologies and political alliances.”1 The literature has upheld the legislative push against the reform as “capable of contributing under certain conditions to safeguarding federalism principles.”2 This research contributes to the literature on contemporary assertions of state sovereignty because it argues that the state legislative activity in opposition to federal law is a mechanism that cannot only safeguard federalism but can also enrich constitutional debate. This study combines an understanding of political science and legal method in an effort to provide a multi-disciplinary dimension to an understanding of the contemporary states’ rights phenomenon. 1 Paul L. Posner & Timothy J. Conlan, European-Style Federalism’s Lessons for America, GOVERNING (Nov. 12, 2014), http://www.governing.com/columns/smart-mgmt/col-europe-variable-speed- federalism-lessons-america.html. 2 John Dinan, Contemporary Assertions of State Sovereignty and the Safeguards of American Federalism, 74 ALB. L. REV. 1637 (2010-2011). iv Preface As Senior District Judge Roger Vinson pointed out in Florida v. United States Department of Health and Human Services the political and legal dispute about the Affordable Care Act “is not really about health care system at all”. It is, he argued, “principally about our federalist system, and it raises very important issues regarding the constitutional role of the federal government.”3 This statement is at the core of the present research which is not ̶ as may initially be supposed ̶ a study of the Affordable Care Act or an analysis of the Sebelius decision. It is instead a study of the oppositional strategies put in place by the state legislatures to push back on the health reform, and as such a work that contributes to the growing literature on state sovereignty movements in the United States. In order to understand the contribution of this work, it is important to keep in mind that the state legislative opposition to the Affordable Care is viewed primarily as a case study intended to inform a broader analysis of contemporary sovereignty claims in the United States. This is in line with recent federalism scholarly work in the United States, in particular with the work of scholars contributing to Publius: the Journal of Federalism, for which I have worked as peer-reviewer. Publius is a leading American Journal funded in 1973 by Prof. Daniel Elazar, a preeminent scholar of federalism. The present work has been presented to numerous conferences in Europe and in the United States, including at the Section on Federalism and Intergovernmental Relations of the American Political Science Association 2017 Annual Meeting, where it was reviewed by federalism scholars and received a positive feedback. 3 Fla. ex rel. Bondi v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256, 1263 (N.D. Fla.) (2012). v Table of Contents Acknowledgments ........................................................................................................................... iii Abstract .......................................................................................................................................... iv Preface ............................................................................................................................................. v Introduction: Legislative Opposition to the Affordable Care Act ................................................. 1 Research aim and objectives .......................................................................................................... 2 Research Objectives ...................................................................................................................... 2 Research Questions ....................................................................................................................... 3 Research territory and theoretical background ................................................................................ 4 Method and Interpretive framework ............................................................................................... 7 Research challenges ..................................................................................................................... 10 Structure ...................................................................................................................................... 11 Contribution to knowledge........................................................................................................... 13 Ethical Considerations ................................................................................................................. 15 Chapter One: Neo-nullification Resolutions and Bills ................................................................. 17 Introduction ................................................................................................................................. 17 I. The Neo-Nullification Phenomenon ....................................................................................... 18 II. A First Distinction: Pure and Cautious Neo- Nullification Bills .............................................. 28 III. The Origins of the Nullification Doctrine ............................................................................... 29 IV. The organizations that promote nullification .......................................................................... 46 V. North Dakota Senate Bill 2309 (2011), a Case Study on the Legislative History of a Neo- Nullification Bill.................................................................................................................... 55 VI. Nullification: the contemporary philosophical and constitutional controversy ......................... 65 Conclusion: the Role of Nullification in Today’s Society ............................................................. 77 Chapter two: The Health Care Freedom Acts and Their Link with the Health Care Lawsuits in Arizona, Virginia and Missouri .................................................................................................... 82 Introduction ................................................................................................................................. 82 I. The Health Care Freedom Phenomenon ................................................................................. 84 II. The Link Between Legislation and Constitutional Adjudication ........................................... 100 III. The Health Care Freedom Acts as the Result of States’ Joint Action .................................... 116 Conclusion ................................................................................................................................ 118 Chapter Three: Tenth Amendment and Anti-Commandeering