| November 16, 2012

On Obamacare, it’s time for Oklahoma’s political leaders to ‘go Churchill or go home’

Oklahoma Attorney General Scott Pruitt is leading the charge to protect Oklahomans from an overweening federal government. Now it is crucial for the state’s other political leaders to stand with him—not to undermine his efforts and hurt his chances in federal court.

Gen. Pruitt is setting an example for the nation, says law professor (and talk-radio powerhouse) Hugh Hewitt. His latest article (“Memo to the States’ Governors and AGs on the Decision On Obamacare’s Exchanges: Go Churchill Or Go Home”) is a must-read. Key excerpts:

Only one state lawsuit against the forced choice on health exchanges has been filed -- by the Sooners' AG, and the amended complaint is here -- and the national opposition to Obamacare should be looking for other governors to say no and other attorneys general to file similar challenges to the health exchange jam down. …

States have to defend themselves against the giant takeover of states’ powers and duties by Obamacare. The decision to “just say no” has to be taken by mid-December. Encourage your governor to say no and to sue alongside of Oklahoma, perhaps engaging one of the country's leading experts on structural federalism like Georgetown's Randy Barnett or my own colleague at Chapman John Eastman to make the arguments to preserve the state's legislative integrity and their independence from D.C. Not only is this the right way to proceed for a state intent on protecting its citizens from an ever-expanding federal government, it may also present the Supreme Court with a second bite at the Obamacare apple via a different set of issues not dependent on the "is the penalty a tax" debate.

Some states are tired of the fight and their law departments not eager to spend another year battling the DOJ.

But that isn’t their choice. That choice belongs to their governor and their attorney general. Those who don’t choose to fight now cannot expect conservatives to fight for them in the future. Go Churchill or go home. …

The left is attempting to declare the Obamacare fight over. It isn't. It is a 15-round fight. Conservatives won rounds when they elected Chris Christie, Bob McDonnell and then Scott Brown after the debate was begun. The left won a round when the law was passed, and it won a round when the Supreme Court upheld the individual mandate, but conservatives won in that opinion as well, on Medicaid and on the reach of the Commerce Clause.

The left scored a knock-down with the president's re-election, but the fight isn't over if the conservatives opposed to the law get up off the canvas and fight on. Oklahoma has, and some states have joined them, though not yet in the courts. They should, and soon. Obamacare was a nightmare before the election, and it is a nightmare still. The president's re-election was manifestly not about Obamacare, and the decision is not final and won't be until every good argument is made and every opportunity given the Supreme Court to review the law in full.

Even if the legal fight should fail, it is important for federalism that many states pass on becoming puppets of the feds via the state exchanges. The fiasco-in-waiting of the federal exchange should be on the president's head, with blame not easily shifted to bungling governors. The president broke it, so he should buy and operate it.

But only after every argument has been made, and the Supreme Court offered the opportunity to rule on the law as a whole.

In addition to Hewitt, another law professor has weighed in with an equally important article. Andrew Spiropoulos, who serves as the Milton Friedman Distinguished Fellow at OCPA, reminds us that many conservatives in Oklahoma meant what we said:

We believe the health care scheme poses a dire threat to our economy, fiscal health, and culture. We will use any means at our disposal to prevent its implementation and force substantial revisions to the plan. Fortunately, in designing their scheme, the president and his congressional minions made strategic and tactical errors that will enable state governments to successfully resist the plan. …

The bottom line is that if enough states refuse to expand Medicaid and decline to build an exchange, the health care scheme will only be implemented in a limited area of the country. The Republican U.S. House of Representatives should then use its considerable leverage over the budget to make sure the states taking the benefits pay an increasingly large percentage of the cost. I don’t think the president, long term, can live with a plan that only covers, and is increasingly funded by, blue states.

The entire article is excellent, and I encourage you to read the whole thing.

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