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This is an ongoing series about the issue of nullification. For Part 1, click HERE. For Part 2, click HERE.

Idaho's Governor and Legislators Passed the Health Freedom Act – so why are they implementing the health care law?

Idaho may be the best example of an action by a state to nullify the health care law. Both houses of the State Legislature passed and Governor Otter signed into law a measure which many viewed as health care nullification. I was still recommending similar action as recently as October. But the more I’ve examined the way in which the health care law will be implemented,  the more convinced I’ve become – encouraging these actions is a mistake.

Idaho’s Health Freedom Act is entirely focused on the individual mandate element of the health care law, not on the key mechanisms by which the law will be implemented and administered, which include the list below. Note that there are five major mechanisms, with two of the three most important being handled by the States, neither of which is covered by Idaho’s law.

Key mechanisms for health care implementation and administration:

PURELY THROUGH THE STATES AND *VITAL* TO THE LAW’S PRACTICAL ADMINISTRATION
1) State Insurance exchanges
2) Huge expansion of state Medicaid programs

ADMINISTERED FEDERALLY, BUT HAPPENING IN EVERY STATE “ON THE GROUND”
3) Medical records technology and comparative effectiveness research council aspects of the February 2009 Stimulus bill

PURELY FEDERAL
4) IRS expansion
5) Rule promulgating by federal HHS

I did not read the press release issued by the Idaho Governor (archived link) upon his signing of the Act until recently. Once the way the health care law’s implementation design is understood, Governor Otter’s press release and the law he was announcing can only be described as confusing. If Idaho ultimately followed all other provisions of the health care law, it is hard to understand how the nullification of the individual mandate would be either possible or of any protection to individual Idahoans.

The best analogy that I can conjure is that it would be like building a fence with razor wire all around the state with no gate and then telling people, “Don’t worry, you can still get out.” There are so many damaging elements within the law it would still have all other negative effects projected by analysts and obvious to one’s common sense.

The State of Idaho seems to be building its razor wire topped fence. In December of 2010 Governor Otter signed an executive order (archived link) establishing a new council; the practical purpose of which appears to health care implementation.

In tracking what Nebraska’s Governor was doing related to the health care law this summer and fall, we created a timeline reference document ¹ Although it is Nebraska-centric, the news story links in it include information about insurance exchange grants that are informative about every state; in mid-August, 45 applied for grants to study the set up of those insurance exchanges. Idaho was not listed as a state which did not apply for that first round of grants. So, to be perfectly clear, that means Idaho applied for what was the first round of grants which takes a state down the road of implementing the health care law. Alas, nothing about the Health Freedom Act prohibited such grant applications nor the setup of the exchanges themselves.

There has been at least one additional grant application period, which just expired on February 18. We have not as of yet researched how many states applied for the funds, but it is likely the majority of the States did. I can make that statement because of an important event that made news; Alaska’s Governor, Sean Parnell, announced he would not be applying by that Feb. 18 deadline due to the ruling from Judge Roger Vinson on January 31 (more on this to come). Had other governors refused to apply it’s hard to believe that fact would be less newsworthy.

In addition to grant funds applied for by Governors, if one looks at activity in any State legislature, it is likely that what we’ve discovered has been going on in Nebraska has been going on in most other states; there were interim study groups over the summer to study health care implementation and at least one bill related to implementation introduced this session, although there are likely more. With 700+ pieces of legislation introduced, we intend to focus our attention on prioritized bills. (In Nebraska, unless a bill is prioritized, it has little chance of passing.)

It seems that there are two potential ways of looking at the whole subject, at least if you live in Idaho. Idaho’s elected officials were focused on the individual mandate. It can be said that the attorneys general lawsuit to which Idaho is party, does carry out the action required on that subject. Currently, therefore, actions of Idaho’s elected officials are consistent with the Health Freedom Act.

The other way of looking at the issue is that a lot of politicians in Idaho made it seem as if they were dead set against the implementation of the health care law and the proposed remedies (passage of the the Health Freedom Act) were adequate means of redress. I do not live in Idaho so I cannot know what the political dialogue has been.

I do wonder what the people of Idaho think now. And I wonder what the people of Nebraska or any other state think about any measures similar to the Idaho Health Freedom Act. Are such measures effective in putting a stop to the impact the health care law will have on the state, the economy, and individual liberty? Or are they just political cover for politicians while the law is being implemented?

Nebraska LB515, introduced by State Senator Mark Christensen, is what I have called a “gutted version” of the Idaho Health Freedom Act. In addition to having a number of elements stripped out, Senator Christensen has not prioritized the bill, which means it is not likely to pass. (Senator Christensen prioritized LB648).

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