Establishment GOP join Democrats to kill anti-Obamacare bill in South Carolina, rebellious Republicans resurrect it

COLUMBIA, S.C., March 27,2014– The fight to nullify Obamacare in South Carolina continues with a bill introduced in the state House by Rep. Bill Chumley (R) on Tuesday.

The year-long effort to nullify the ACA in the Palmetto State seemed to be dead in the water after parliamentary maneuvering by establishment Republicans in the Senate killed H3101 last week.

H3101 was originally known as the “Obamacare nullification bill” because it declared the Patient Protection and Affordable Care Act unconstitutional and void within the state. After significant narrowing, the South Carolina House passed the bill 65-34. But the initiative floundered in the Senate and was carried over to the current legislative session.

Over the summer, H3101 Senate sponsor  Senator Tom Davis (R) developed a new strategy for the bill. Instead of relying on a determination of constitutionality and declaring the ACA illegal, he worked with others to craft language based on the well-established anti-commandeering doctrine. The so-called “strike-all”  amendment would have replace the full text of the bill, banning the state from participating in the implementation of the main pillars of the federal act.

While passage wouldn’t void the legal status of the federal act, it would be a significant blow to its implementation. Some call it a “nullification in practice.” Judge Andrew Napolitano has said that this action would “gut Obamacare.” James Madison, writing in Federalist #46, said that a “refusal to cooperate with officers of the Union” would create effective roadblocks to stop implementation of federal acts.

Last week, the South Carolina Senate voted down H3101 (33-9) after Republican Lt. Gov. Glenn McConnell ruled every amendment filed on the bill banning the state from enforcing Obamacare ‘not germane’ and refused to allow debate or a vote. He did this knowing that the House version didn’t have the votes to pass.

State Senator Lee Bright (R), the current Tea Party favorite to defeat U.S. Senator Lindsey Graham for his U.S. Senate seat, told, “I was proud to stand with eight other senators to fight Obamacare in South Carolina.”

Refusing to concede defeat, Chumley and Rep. Bill Davis (R), along with 25 cosponsors, introduced H.4979 with identical language to the Davis amendment.

“If the State Senate can’t block ‘Obamacare’ in South Carolina, we’ll try again in the House of Representatives,” Bill Davis said. “Rep. Bill Chumley and I co-sponsored legislation today identical to Sen. Tom Davis’ Anti-Commandeering amendment. His efforts were rejected by the Senate last week as being out of order while they were debating the ‘Obamacare Nullification’ bill.”

The legislation prohibits the state from implementing or participating in the “establishment of a health insurance exchange,” or expanding Medicaid under the federal Act. It also prohibits the state from taking actions to “assist in the enrollment of any person” in an exchange. It will also specifically target the individual and employer mandates. It prohibits the state from enforcing or even aiding in the enforcement of either section. This includes an express prohibition on the use of any “assets, state funds or funds authorized or allocated by the state to any public body… to engage in any activity that aids in the enforcement of any federal act, law, order, rule, or regulation intended to give effect to or facilitate the enforcement” of those two sections of the ACA. Finally, the bill creates a new “transparency in grants” procedure to make the receipt and use of grant money under the ACA extremely difficult, if not politically impossible.

Sen. Davis reportedly plans to introduce the amendment language as a separate bill in the Senate as well. Activist Jesse Graston says he thinks the strategy could save the legislation because it enjoys widespread support among lawmakers.

“The only reason the Davis amendment did not get a vote was because of the perverse interpretation of the germaneness rule by Lt. Gov. Glenn McConnell, he said. “By having the bills introduced with the exact same language in both the House and Senate, we should have no problem. The fact that the Senate has already debated the Davis amendment for three weeks and was ready to vote for it is massive in the sense that we can justify it’s fast track back onto the Senate floor, because they have already declared their support for it and voted cloture once already.”

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