The Wall Street Journal - States of Resistance

Op-Ed

The Senate Judiciary Committee held its first-ever hearing on the constitutionality of ObamaCare yesterday, and talk about a barn door closing. After federal Judge Roger Vinson struck down on Monday the entire statute in a suit brought by 26 states, some states are already suspending any efforts to comply with its regulations and mandates.

"For Wisconsin, the federal health-care law is dead," Attorney General J.B. Van Hollen said in a statement, unless Judge Vinson's decision is stayed by the 11th Circuit Court of Appeals. Florida Governor Rick Scott said he had no intention of wasting "time and money" executing the for-now defunct law, and his insurance commissioner returned a $1 million federal assistance grant. Idaho will also freeze implementation, and we hope the remaining 23 states will join the rejectionists.

For all the liberal squawking, Florida, et al., are well within their legal rights: A federal court issued a binding judgment voiding the law, with Judge Vinson noting that he trusted the Administration would obey the "long-standing presumption" that such a judgment is "the functional equivalent of an injunction."

Yet the White House and Health and Human Services have already said they'll continue running ObamaCare as if nothing has changed. Imagine the rule-of-law furor if the Bush Administration had said a wiretapping or other civil liberties ruling didn't matter.

The Obama Justice Department can file an appeal asking the 11th Circuit for a stay, and it will--but as soon as it does, it will be forced to concede that the Administration is currently flouting the law. Florida Attorney General Pam Bondi deserves particular credit for holding Justice's feet to the fire on this point.

Even if a stay is granted, the states should say that the uncertainty about the survival of ObamaCare is so great that they shouldn't have to squander resources implementing it. The states could simply refuse to do so and let the feds take over. An alternative is to implement their own market friendly alternatives for ObamaCare's "exchanges" and other state-based policy decisions, even if the Administration objects. HHS has the option of running the exchanges for the states, but it will find this difficult to do if a majority of states resist.

Senate Democrats circled the wagons to defeat a repeal amendment 51-47 last night, but that defensive position won't hold forever. They did relent on the 1099 reporting mandate, which the Senate voted to rescind 81 to 17. One promising next step for the GOP is a bill from Wyoming's John Barrasso that would allow states to opt out of some of the other mandates. The Administration claims this would strip Americans of "consumer protections," but this is a case in which such "protections" are already harming consumers by causing higher insurance rates.

The larger story here is that the legal and political challenges against ObamaCare are revealing the rotten process and substance of this misbegotten law, and that the only way to fix this is to repeal it and start over.

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