subject: ‘Shall' the States Set up Health Insurance Exchanges? [print this page] Shall' the States Set up Health Insurance Exchanges?
Wording a law can prove to be even trickier than formulating one. If the lawmakers are not careful about each and every word being written and leave room for interpretations, then they could find themselves in the same soup that the federal government has landed itself in.
What is intriguing is that a four lettered word has given skeptics reasons to question the constitutionality of the People Protection and Affordable Care Act. The Act mandates that "Each state shall, not later than January 1, 2014, establish an American Health Benefit Exchange [Section 1311 (b) (1)]." And it is the word SHALL' that has become the source of the controversy.
People opposing the law argue that with the use of the word SHALL', the clause gives directions to the States and makes it mandatory for them to establish health insurance Exchanges. This, according to them, contradicts the Tenth Amendment
The Tenth Amendment, ratified on December 15, 1791, endorses the concept of federalism in the country's administration. It also goes on to state that those powers that are not delegated to the federal government and not prohibited to the States, are reserved for States and the people to decide. This effectively means that the federal government has no authority to order state governments to set up insurance Exchanges.
Explaining the ambiguity of the word SHALL', health policy analyst says, "Shall doesn't sound like a very cooperative word. It sounds like a mandate. There are a lot of words available in the English language that communicate a voluntary act. States may or states choose or states have the option are a few examples. But the law says that the states shall' . . . The health reform law provides income tax credits to individuals in exchanges established by states, but not to individuals in exchanges established by the federal government (in non-electing states). . .The choice of their state to establish or not to establish an exchange will impact the tax credits that citizens receive. The sovereignty of states is undermined, because the adoption of this law is hardly voluntary."
However supporters of Obamacare have a different story to narrate. Defending the legality of the clause they reason that the only consequence is if refuse States refuse to set up Exchanges, then the federal government will step in and build Exchanges for them.The defendants have also found supporter in Judge Vinson in Florida. Giving his view on plaintiffs' questioning the validity of the law, Judge Vinson cited the example of a further provision of the clause when a State chooses not to set up an Exchange. In his ruling the Judge said, "Plaintiffs have not identified any provision in the Act that requires the states to enact a particular law or regulation nor have they identified any provision that requires state officials to enforce federal laws that regulate private individuals.
With this verdict, Judge Vinson has fuelled the fire further. What remains to be seen is how this and the upcoming rulings on the federal healthcare reforms SHALL affect the implementation of the People Protection and Affordable Care Act.
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