Election fallout: Obamacare losing ground among states

Ohio voters by a 2-1 margin have approved a state constitutional amendment declaring Obamacare's requirement for Americans to purchase government-approved health insurance unconstitutional, joining a growing surge of state-level activity that could bode ill for the president's signature first-term legislation – no matter what the U.S. Supreme Court rules.

Just consider the REAL ID act, mandated years ago by Congress but unfinished because states simply have refused to implement it.

In the vote this week in Ohio, 66 percent of voters jumped at the opportunity to embed in their state constitution the necessary language to undermine Obamacare.

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Tenth Amendment Center Communications Director Michael Maharrey says the voters simply told Washington that they would rather make their own health care decisions.

"What they voted on was a constitutional amendment that says people in Ohio will maintain the right to choose their own health insurance and their own mode of health care regardless of what the federal government may pass," Maharrey said.

Obamacare, the law that former House Speaker Nancy Pelosi famously said would have to be approved so the people could find out what's in it, requires that every person buy insurance that the government mandates under penalty of financial and other punishments.

It has been challenged in dozens of court cases, and several circuit courts have issued differing opinions – some calling it constitutional under the Commerce Clause; others saying Congress does not have the power to order people to buy a product.

Maharrey says his group is in favor of the Ohio vote and others like it, but his group does not endorse states openly disregarding all federal law.

"I think it's important to help people understand right from the front that we don't advocate that states can nullify any law they feel like, but it's very specifically applied to unconstitutional acts," Maharrey said.

The state votes so far on Obamacare:

Blue indicates legislation introduced, yellow means passed in 1 house, green passed in both houses, red passed as law, black failed

"These would be acts that are beyond the scope of federal power in the Constitution. So that's what's important. Some people will try to smear the whole idea and say the states want to get rid of laws they don't like," Maharrey said.

"It's not a matter of not liking it, it's a matter of what's constitutional and what is not. It's clear that there's no enumerated power for the federal government to mandate citizens purchase health insurance," Maharrey said.

He called the 66 percent vote one of "landslide proportions."

Commentary after the Ohio vote suggested it was largely symbolic and that the result will have little impact on whether Ohio implements Obamacare.

But public policy analyst Alan Caruba says that regardless of the Ohio vote's legal impact, the vote itself should send a signal nationally.

"I think the Ohio vote against Obamacare is a clear reflection of the nation's mood as well as the fact that 26 states' attorneys general have a case that the Supreme Court may take up that challenges the requirement to purchase health insurance," Caruba said.

Maharrey believes that if the states don't do anything to prevent the federal government from establishing the Obamacare system, then the Ohio vote will be rendered largely symbolic.

"The states have power they can exercise in order to ensure that this is not merely a symbolic gesture, namely they can refuse to set up the exchanges. They can refuse the money; don't allow the system to be created in the first place," Maharrey said.

Maharrey also points to the reality that one state will have little power to stop any unconstitutional federal program, but a large number of states working together can halt the federal government in its tracks.

Maharrey pointed to the example of the Real ID Act passed in 2005.

"It still has not been implemented because the states have simply refused to do it. So we assert that that is the proper role of the states to put a check on this overreaching federal power," Maharrey said.

"We've had a large number of states that have refused to implement the Real ID Act so six years down the road we still don't have the Real ID Act implemented," Maharrey said.

Caruba said illegal immigration is another example of the states asserting their sovereignty.

"As to other issues, the problem of illegal immigration on our southern border is being addressed by some states with laws giving law enforcement authorities to right to determine if someone is here legally or not. The Obama administration has sued in both cases to block such legislation," Caruba said.

Caruba says the Second Amendment is another issue in which the states are standing up to federal power. Nearly a dozen states have adopted legislation, which is being challenged in court, that guns made, sold and kept inside a state are exempt from federal rules.

Even if Ohio's vote is part of a national trend towards state's rights, Maharrey doesn't believe the vote will lead to a "constitutional crisis."

"Let's back up a minute and define terms. What you have is the federal government declaring that something the federal government passed is constitutional. That's the whole point of nullification," Maharrey said.

"In the press release we sent out, we wrote about Thomas Jefferson writing in the original Kentucky Resolutions of 1798. In a situation where you have two parties that are equal parties to a contract, and there's no judge between them, then both parties have the power and the right to decide," Maharrey said.

"What you have here is the state of Ohio looking at this and very clearly, nobody has been able to articulate any rational reasoning, going back to what the Founding Fathers intended commerce to mean, that an insurance mandate is a constitutional thing," Maharry said.

"So what you have is … the people of Ohio saying we don't accept this federal interpretation of its own power. Therefore, we're not going to apply it," Maharrey said.

"This is exactly what James Madison had in mind when the system was created. It was always intended that the states serve as a check on federal power," Maharrey said.

"If you look at the Federalist Papers, you'll see where Madison actually talked about this very thing and he said when the federal government oversteps its authority, the states would put up impediments that would make it impossible for the federal government to implement these unconstitutional actions," Maharrey said.

"I think that's what you're starting to see. You're starting to see states assert themselves," Maharrey said.

As many as 10 states have passed either constitutional amendments or statutes to prevent Obamacare from being implemented in their state.

Tennessee and Kansas, Louisiana, Virginia and Idaho are among the states that have passed legislation, and Ohio Arizona, Missouri and Oklahoma have passed amendments.

Maharrey say that North Dakota has passed the strongest bill.

"North Dakota actually passed a nullification law that declared the entire Obamacare bill unconstitutional. It even went beyond the insurance mandate. It went to say that the federal government has no authority to create a national health care system," Maharrey said.

"Then you have Florida which will have an amendment on the ballot in 2012 that makes it illegal for any federal official to assert federal power over intrastate commerce," Maharrey said.

Maharrey said the movement for states asserting their Tenth Amendment authority is strong and gaining strength.

"Any area where the federal government is overstepping its constitutional boundaries, it's almost limitless," Maharrey said, illustrating his point by the Obama administration's attempt to put a tax on live Christmas trees.

"This (referring to the Christmas Tree Tax) is absolutely ridiculous and so far outside of anything the Framer's intended or conceived of. There are so many areas that the states need to reassert themselves and reestablish that proper balance of power," Maharrey said.

Maharrey added that he believes that Americans instinctively know when the federal government is overstepping its boundaries.