“Nullification theoretically falls apart on itself because you create the buffet of law, meaning state one chooses this law and state two chooses this law,” Kane said.  “You have zero uniformity.”  He also said that if states could nullify federal law, they would have unchecked power, which the framers of the Constitution tried to avoid.

“If you advance the theory of nullification, you’ve created an unchecked power, because who is it to tell the state that they’re wrong on nullification? There isn’t anyone,” said Kane.

Immediately after that comment, Rep. Pete Nielsen, R-Mountain Home, who backed such laws, asked Kane what checks there are on the U.S. Supreme Court, which is often the ultimate arbiter on constitutional issues.  Kane said Congress has some power to regulate the Supreme Court.

During the legislative session, Kane wrote several opinions on behalf of the attorney general’s office questioning the constitutionality of laws that called for nullifying or limiting implementation of new federal health care laws.  Lawmakers ended up passing a scaled-back version of that plan, which was vetoed by Gov. Butch Otter and replaced with a similar executive order.

Kane mentioned the Civil War numerous times in his presentation on nullification, adding that he was surprised that a country as big as the U.S. has only had one civil war since its creation. He defined nullification as the theory that a state has the right to invalidate federal laws it deems unconstitutional.

Rep. Vito Barbieri, R-Dalton Gardens, who helped write some of the anti-health care reform plans, heard Kane’s presentation. He said Kane did a good job presenting the legal opinion of the attorney general’s office, but differed on the potential effects of states nullifying federal laws.

“I don’t know that there’s an automatic conclusion that secession is necessary just by the act of state’s nullifying,” Barbieri told IdahoReporter.com.  “I wouldn’t extend it that far at all.”

Barbieri said lawmakers will take up nullifying or otherwise pushing back against the federal government again.  “The federal government is overintruding into state affairs in so many different areas,” he said.

Kane said nullification is an important topic, since many people are concerned with the actions of the federal government.  “There’s a legitimate debate here about the scope and size of the federal government and the scope and size of the states,” he said.

States’ pushback against federal laws goes beyond health care.  Idaho lawmakers passed a law rejecting the REAL ID plan for enhanced drivers licenses and approved a firearm freedom law that blocks federal gun regulations on any firearm made and sold wholly in Idaho.  That law, a copy of similar laws in other states, has been struck down by a federal court, but is headed for an appeals court.  Other states have legalized medical marijuana; that idea has been suggested by Idaho Rep. Tom Trail, R-Moscow, but gotten nowhere.

Kane said the nullification issue was one factor in what he said was record public participation during this year’s legislative session.  “The backbone of our system is our ability to question our government,” he said.  Kane also listed several steps less severe than nullification that states or individuals can take to show displeasure with the federal government.  That list include acts of civil disobedience, opting out of federally-funded programs, litigating the constitutionality of a law and complaining loudly.  Idaho has taken each of those actions at times, including suing to stop the federal health care law.

Kane also said there’s one step beyond nullification: revolution.

Note: IdahoReporter.com is published by the Idaho Freedom Foundation, which helped write the health care nullification legislation.

“The decision represents the importance of adhering to the rule of law and working within the constitutional system of checks and balances and we are pleased that the Court agreed with our position that the individual mandate is unconstitutional,” Idaho Attorney General Lawrence Wasden said.  Wasden joined in the lawsuit after Gov. Butch Otter and legislators passed a law opposing the individual mandate to buy health insurance.

Update: Bob Cooper, Wasden’s spokesman, said it was attorney general’s sole decision to enter into the lawsuit, because he had concerns about the constitutionality of the federal reform.

“The (state) statute itself infringes upon the constitutional duties of the executive branch,” Cooper said.  “He appreciated the input of the Legislature. It was helpful to know that they had his back, but the decision to file the lawsuit was his.”  The state law, the Idaho Health Freedom Act, requires the attorney general to take legal measures to defend other parts of the act, which assert Idahoans’ right to choose or decline health care services.

Otter’s attorney, David Hensley, said the ruling joins similar decisions that call into question the reform law.  “All of them reaffirms not only the governor’s opposition to the individual mandate but his general concerns with Obamacare,”  Hensley told IdahoReporter.com.  “He has said all along that Congress overreached in requiring individuals to purchase health care.”

In a 2-1 ruling, Chief Judge Joel Dubina and Circuit Judge Frank Hull ruled Congress overstepped its power in creating the individual mandate, but ruled that the rest of the law is constitutional. The states had tried to throw out the expansion of Medicaid in the Patient Protection and Affordable Care Act (PPACA).  The appeals court ruling differs from a lower court decision that overturned the entire health care reform law.

Dubina and Hull wrote that the individual mandate goes beyond the limits of Congress’ power in the Interstate Commerce Clause of the Constitution.  “What Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die,” they wrote in their decision.

Wasden, Otter and other state leaders who oppose the health care law have argued, similar to the judges ruling, that the reform plan doesn’t follow the Commerce Clause.

The ruling sets up a likely U.S. Supreme Court case, since a separate appeals court sided with the federal government, saying the individual mandate is constitutional.

“We have always anticipated that this case will ultimately be decided by the United States Supreme Court and we expect that the federal government will appeal to the Supreme Court,” Wasden said.

“When we began this process of challenging Obamacare, we recognized that ultimately the Supreme Court was going to have to decide some of these issues like the individual mandate,” Hensley said.

Circuit Judge Stanley Marcus dissented in the Georgia federal appeals court.  He called the views of the states and the two other judges approaching the case “wooden, formalistic, and myopic.”  Marcus wrote that Congress has long regulated health insurance and regulated parts of the system, including prescription drugs and the cost of health care through setting Medicare prices.

“The majority has ignored many years of Commerce Clause doctrine developed by the Supreme Court,” Marcus wrote.  Dissenting opinions don’t carry the force of law, though arguments in such opinions can be adopted by later courts.

The other states in the lawsuit include neighboring Wyoming, Utah, Nevada and Washington, as well as Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas and Wisconsin.

Note: IdahoReporter.com is published by the Idaho Freedom Foundation (IFF), which filed a legal brief with the appeals court. The court’s ruling did not mention IFF.

The new federal grant money will be for two programs run by the Department of Health and Welfare (DHW).  The agency will get $2 million for each of the next five years to offer grants to local organizations for programs to prevent cancer, heart attacks, strokes and diabetes. That federal money could go to city governments, hospitals, universities, health departments, and other organizations.

“We had a number of communities that were asking for it, and so we approved it,” said Otter’s spokesman, Jon Hanian.

Another $1 million would go to early childhood visiting programs being planned in four counties, Twin Falls, Jerome, Kootenai and Shoshone, in south central and north Idaho.  DHW had previously gotten $753,000 for the home visit program.

“It was not related to health insurance or Obamacare,” Hanian said.  “That’s why he [approved] that one.”

“Some of Idaho’s most expensive social problems are rooted in early childhood,” a memo released by the governor’s office on the waivers said. “Helping families provide healthy, stable home environments during the critical years of a child’s development increases that child’s health and success later in life.”

In an April letter explaining why he set up the waiver requirement for the federal laws and vetoed legislation that would’ve set up a similar plan, Otter said the state shouldn’t implement the federal laws.  “No one opposed Obamacare more vehemently than me,” he said.

Otter’s staff has said that the waivers he’s approved don’t implement the controversial parts of the plan, including the requirement that people buy health insurance.

“It’s a case-by-case basis,” Hanian said.  “[The governor] is not close minded about these things.  He’s willing to listen to a reasonable argument.”  Agencies must submit their requests for approval to the plan.

The governor’s office doesn’t show any further requests from state agencies to receive waivers to implement or receive funds from the federal reform laws.

“We’re going to follow the federal health reform, but we’re going to do it at a slower pace,” said Teresa Luna, the head of the Department of Administration, which oversees the state’s health plan for its workers.  “In exchange for doing it at a slower pace, we guarantee that we won’t raise rates at an exorbitant manner.”

State lawmakers ordered Luna to keep the state plan grandfathered, though she can report back next year if it would be cheaper to change the plan’s status, which would give the state more options in running its plan.

Workers on the state plan are still seeing some of the changes under the federal Patient Protection and Affordable Care Act, sometimes referred to as Obamacare.  Children of plan members can stay covered through the age of 26, and pre-existing health conditions of children under 19 must be covered.  By 2014, the current lifetime maximum of $1 million in health benefits will disappear.

Implementing these reforms cost the state approximately $1.5 million, according to Luna, which is less than 1 percent of the yearly cost of the insurance plan.

However, the Idaho state plan and other grandfathered plans across the country don’t need to follow other parts of the federal law.  Those provisions include eliminating added payments for going to out-of-network emergency rooms and free preventative care, which includes services such as cancer and blood pressure screenings.  A full list of reforms that don’t apply to grandfathered plans is available at the U.S. Department of Labor’s website.

Luna said she and others monitoring Idaho’s insurance plan are looking to more preventative medicine as a way to keep costs down.  “We’re going to start working on a program that will make wellness and preventive medicine more of a focal point,” she said.  “We’re hoping to learn more what our costs are and then limit those costs by making the right choices rather than fixing them after things have already gone wrong.”

Leaders of two groups representing state workers, the Idaho Public Employees Association and the Idaho Association of Government Employees, told IdahoReporter.com they weren’t familiar with the grandfathered status of the state plan.

To keep the state health plan grandfathered, Luna’s department needed approval from Gov. Butch Otter, who also signed off on several other waivers to let the state follow the federal reforms.  The other waivers could bring in almost $19 million in federal money for programs that the governor’s office said don’t implement some of the controversial reforms.

Idaho is among the majority of states suing to stop implementation of the federal reforms’ requirement that people buy health insurance.  Idaho’s case is currently in a federal appeals court and could end up in the U.S. Supreme Court.

So far, Otter has signed off on 10 grants that would let state agencies spend $18.9 million in federal funds from the PPACA.  State officials say the money won’t implement the parts of the health reform laws that the governor and lawmakers have publicly scorned, including the individual mandate to buy health insurance, but are for other federal health programs that are part of the law.

“The governor has said before, if folks make a good argument and explain the reasons for it, he’s willing to have his mind and opinion changed,” said Otter’s spokesman, Jon Hanian. “In some cases they were successful; in others they weren’t.” Hanian provided IdahoReporter.com with a list of the waivers approved by the governor.

The biggest waiver approved is the $12.5 million Idaho Ladder to Success Project requested by the College of Southern Idaho (CSI).  That grant is intended to improve technical college’s efforts to help students trying to enter the health care, energy and manufacturing job sectors.  Idaho State University could also get $1.2 million for a doctor residency program.

Half of the 10 waivers the governor approved were from the Department of Health and Welfare (DHW), which runs Medicaid and other health programs that often rely on both state and federal tax dollars.  Approved DHW waivers included money for a media campaign to promote quitting smoking and planning to determine how to help people on Medicaid with chronic illnesses, as well as several grants to help public health efforts.

“I don’t think you can consider tobacco prevention to be health care reform,” said DHW spokesman Tom Shanahan, who said Idaho had received federal funds for similar programs before the reforms were passed.  “When you think of health care reform, you think of things that are going to change in the health care industry, and these are things that aren’t really involved in health care reform.”

Otter also rejected one DHW waiver request, for increased Medicaid funding for more community-based personal care services.  Those services allow people to live on their own, by paying people to come into their house to help with routine tasks.

“For many people, if they get those services, they don’t have to go to a nursing home,” Shanahan said.  Idaho does offer some personal care services to people.  The grant would’ve allowed the federal government to pay for more and help more people live on their own, but would’ve required the state to increase its total funding, as well.

“It’s an expansion, and right now we’re not in the business of expanding anything,” Hanian said.  “We’re not looking to expand programs at this point, because of the uncertainty, and beyond that, concerns about the spending that we’ve seen in Washington.”

The governor also approved a waiver to let the Idaho Department of Labor continue setting up a information system for primary care health jobs.  That grants provides $125,000 in federal funds.

The Department of Adminstration received two grants.  One allows the state to have its health plan for state workers be grandfathered into the federal health reforms.  That requires the state to maintain some of the benefits, but not follow all the reforms to insurance plans.  The second waiver would allow the department to receive more than $2 million in reimbursements for any state workers who might retire early and aren’t eligible for Medicare who might stay on an insurance plan provided by the state.

Hanian said the waivers the governor approved don’t put into place any new national health care provisions and that Idaho has been working on state-based health reforms for years.  “We were doing this after we got into office,” Hanian said.  “Obamacare is something that came along afterwards.”

Read IdahoReporter.com‘s earlier story on waivers for the federal health care law.

“Congress asserts authority that extends far beyond the recognized limits of the enumerated powers granted to it by the Constitution,” the IFF said in the amicus curiae brief sent by Boise attorney Geoffrey Talmon.

Several hundred groups or individuals have sent similar letters to the court in support or opposition to the Patient Protection and Affordable Care Act (PPACA) of 2010, often called Obamacare by some, including the plan’s critics.

The IFF has supported several efforts at the state level to oppose the plan, including efforts to nullify the law in Idaho and the Idaho Health Freedom Act, which required Attorney General Lawrence Wasden to sue the federal government to block some of its provisions.

The multi-state lawsuit that Wasden is a part of focuses on the law’s mandate that individuals purchase health insurance or pay a tax penalty. Opponents say the mandate, which goes into effect in 2014, is unconstitutional. A federal district judge sided with the states, overturning the entire act, though he later ruled that the federal government can continue to implement the law as it works through the appeals process.

The health care law has many other provisions, including an expansion of Medicaid and changes to insurance regulations.

IFF’s legal argument to the appeals court follows documents filed by the federal government arguing that the Idaho Health Freedom Act doesn’t give Idaho the legal ability to sue to block the law. Attorneys for the Obama administration argue that states can’t sue to protect its citizens from federal laws, which the IFF disagrees with.

“The Obama administration was contending that the state didn’t have legal standing to argue against Obamacare,” said IFF Executive Director Wayne Hoffman. “What we were attempting to do was offer legal analysis that suggests that not only does the state have standing but reaffirm the fact that if Obamacare were allowed to stand, it would severely damage the state.”

In the legal brief, the IFF also contends the individual mandate to buy insurance crosses the line of constitutional power and said the law moves society “towards a presumption of servitude to the whims and desires of Congress.” The IFF also argues that Idaho lawmakers imposed fewer mandates for health coverage on insurance companies than any other states, and that parts of the law would curb state lawmakers’ power.

It remains to be seen if the IFF’s friend of the court letter will have any impact on the outcome of the lawsuit. “The idea is that an amicus curiae brief is to be designed to aid the court with information that it otherwise wouldn’t have if it was just looking at the briefs of the parties,” said Richard Seamon, a University of Idaho law professor who worked as a lawyer for the U.S. Department of Justice and argued more than a dozen cases before the Supreme Court. “Over time, though, that’s changed.”

Seamon said high profile cases like this one often get more than 100 such legal briefs and not all of them can influence a case. “I really, frankly doubt that the judges will read every one of those amicus briefs. It’s simply too much. Many of them simply don’t have that much to add to the mix.”

Many national associations, including health groups both for and against the reforms, have filed such letters. Idaho Republican Sens. Mike Crapo and Jim Risch, who both voted against the law, joined other GOPs in the Senate in an amicus brief. Idaho’s Indian tribes signed onto a letter from tribes around the country urging for the court to not throw out parts of the law that extend a health care program for Indians.

The federal appeals court in Georgia is scheduled to hear oral arguments in the case in June. There are three other lawsuits over the law working their way though the courts, with the Obama administration holding a 2-2 record. Many observers, including Wasden, feel the case will be decided by the U.S. Supreme Court, which could hear the case later this year or next year.

Note: IdahoReporter.com is published by the Idaho Freedom Foundation.

In his debate in favor of the plan, Sen. Monty Pearce, R-New Plymouth, listed his concerns with PPACA, including the new government agencies and added health care regulations.

“This is a very, very serious thing for America,” Pearce said. “We need to at least hold it out of Idaho for as long as we can.”

The legislation would block the Idaho state government from enacting any parts of the PPACA that are considered discretionary. That could apply to federal grants, including the $2.5 million that lawmakers rejected for setting up a health insurance exchange.

During debate on the plan, Sen. Sheryl Nuxoll, R-Cottonwood, was very critical of the PPACA, saying it could be called socialized medicine, that it would set up death panels, that elements of the plan are akin to Nazism and that the reforms are supported by Cuban leader Fidel Castro.

Democrats opposed the plan. “By passing this law, we will shoot ourselves a big hole in our foot,” said Sen. Dan Schmidt, D-Moscow, who is a doctor. “I think this is a mistake financially.”

Senate Minority Leader Edgar Malepeai, D-Pocatello, said there is no need for the plan and that it’d unnecessarily put a wall up between Idaho and millions in federal grant money. Sen. Nicole LeFavour, D-Boise, said Pearce’s legislation does nothing to address problems of rising health care costs, or the burden of the uninsured on state coffers.

The legislation now heads to Gov. Butch Otter for his consideration.

Note: IdahoReporter.com is published by the Idaho Freedom Foundation, which helped write this legislation.

The Senate State Affairs Committee approved a plan that would block state agencies from accepting some money from the federal government related to the reforms or making agreements with the feds. The two Democrats on the committee opposed the plan, which cleared the Idaho House without any Democrats in support.

Those restrictions would apply to discretionary portions of the Patient Protection and Affordable Care Act (PPACA) of 2010 and portions that don’t go into affect until mid-2012. Any parts of the PPACA that a state agency deems mandatory could be carried out, though the agency would need to notify lawmakers of the actions it takes.

Rep. Vito Barbieri, R-Dalton Gardens, said one clear example of what the legislation would block is a health care exchange, which is a state-run marketplace to help individuals and small businesses compare and buy insurance. Idaho lawmakers rejected taking $2.5 million from the federal government for the next year to research exchanges.

“A lot of the non-mandatory provisions relate to federal funding: grants and different things,” said committee chairman Sen. Curt McKenzie, R-Nampa.

The attorney general’s office issued an opinion to Rep. Bill Killen, D-Boise, on the legislation, saying there could be difficulty and controversy determining which parts of the PPACA are discretionary and which are mandatory. The letter also said that notifying lawmakers about mandatory parts of the PPACA could create an added administrative burden.

Wayne Hoffman with the Idaho Freedom Foundation, who helped write the legislation, said Idaho would be passing up funding that was designed to get the states to buy into the federal reforms.

Sen. Patti Anne Lodge, R-Huston, questioned whether Idahoans’ federal taxes would pay for programs in other states. In response, Hoffman said he estimates Idaho taxpayers could pay $200 million to implement the program.

Idaho is one of more than two dozen states currently suing the federal government to block part of the reform plan that requires individuals to buy medical insurance. The states won the initial decision, though an appeals trial is scheduled to start in June in Atlanta, Ga.

The legislation now faces a full Senate vote.

Note: IdahoReporter.com is published by the Idaho Freedom Foundation.

The Joint Finance-Appropriations Committee (JFAC) approved a new budget for the Department of Insurance that includes spending $500,000 from insurance fees on efforts to help the department protect Idaho against the federal government from regulating the state’s insurance industry.

“It’s a firewall for us,” Rep. Maxine Bell, R-Jerome, said about the additional money. Bell, one of the co-chairs of JFAC, pulled the old version of the Insurance budget that included the federal reform money.

That $2.5 million would have let the Department of Insurance research health insurance exchanges, which are government-run marketplaces that help individuals and small businesses compare and purchase insurance. Under the federal health care reform plan, states need approved exchanges by the beginning of 2013, or else a federal exchange will be created. Gov. Butch Otter and the Department of Insurance both requested the federal money.

“What’s at risk here is state regulation of our own industry,” said Sen. Dean Cameron, R-Rupert, the other co-chair of JFAC. Cameron also owns an insurance company. “You’ll put a lot of people out of business that way.”

Department of Insurance Director Bill Deal wouldn’t comment on how his department would use the $500,000 to protect state regulation. That $500,000 in fees would otherwise revert to the state general fund.

The new $8 million budget for the Department of Insurance now needs House and Senate approval.

Otter issued a statement on the Republican Governors Association website, repeating his charge that the Patient Protection and Affordable Care Act (PPACA) is unconstitutional.

“The unprecedented and unconstitutional burden that Obamacare seeks to impose on the American people already is damaging state efforts to implement responsible, cost-effective measures to make health care more affordable and accessible,” Otter said on the website. “It’s diverting attention, effort and resources from our own data- and market-driven policy initiatives. That’s why we here in Idaho have taken a stand and will continue to lead the way in pushing back against this unconscionable overreaching of federal authority.”

However, the governor recommended in his budget that the Idaho Department of Insurance use $2.5 million in federal money from the PPACA to research health insurance exchanges, which would be a marketplace to help individuals and businesses compare and purchase insurance. The Idaho Senate approved the spending on a 20-15 vote, with the majority of Republicans in the Senate opposing the plan. It’s scheduled to come up for a House vote this week.

Otter’s spokesman, Jon Hanian, explained why the governor supports the plan. “This isn’t for implementation, which the governor is on record as being against,” he said. Hanian added that using the money from the feds could help the state be in a position to set up an insurance exchange if the federal reform plan stays in place. States would be required to have an exchange in place in 2013.

“Unless the law is changed, currently as it’s written, if we don’t go ahead and do this, the feds can go ahead and do it for us,” Hanian said. He added that setting up an insurance exchange could dovetail with the governor’s health reform efforts.

Department of Insurance Director Bill Deal said the state could have requested grants to implement some of the insurance reform plans, but has not. Idaho also refused to accept federal money to set up a high-risk insurance pool for people with pre-existing medical conditions.

Idaho is one of two dozen states suing to block the PPACA. The states won a lawsuit, though the federal district judge in Florida ruled that states could continue to implement the reform plan as the suit works through the court system.