Compact to free Kansas from health care reform may need presidential approval

08/02/2014 3:53 PM

08/08/2014 10:26 AM

Kansas seniors worried that the state could take control of Medicare through a proposed health care compact may not need to worry after all.

A constitutional law professor at Washburn University says the compact would need presidential approval, though its backers dispute that.

Kansas lawmakers passed a bill that committed the state to a theoretical health care compact during the 2014 session. The bill, framed by supporters as an escape route from the Affordable Care Act, was signed into law by Gov. Sam Brownback despite strong protests by the AARP, which said the compact would put Medicare dollars under state control.

Eight other states have signed onto the idea of the compact, which would free states from the ACA’s regulation and allow them to receive federal health care dollars as a block grant.

Proponents have argued that interstate compacts – agreements between states – require congressional approval but do not need a presidential signature.

That’s not true, says Jeffrey Jackson, a professor who teaches constitutional law at Washburn University School of Law.

“Every compact that has been presented to Congress, and approved by Congress, has been presented to the president. Every one,” Jackson said in a phone call. He added that President Franklin D. Roosevelt vetoed two compacts.

The clause in the Constitution that deals with compacts says they require congressional approval and makes no mention of the president, but Jackson says compact supports are overlooking the Presentment Clause, which states “Every Bill which shall have passed the House of Representatives and the Senate shall, before it become(s) a Law, be presented to the President of the United States.”

Compact supporters are reading the compact clause in isolation and overlooking the rest of the Constitution, Jackson said.

A compact has been introduced in the U.S. House, co-sponsored by Rep. Tim Huelskamp, R-Fowler.

“Constitutional lawyers have varied opinions on whether a Presidential signature would be required to implement this compact,” Huelskamp communications director Jamie Jackson said in an e-mail. “However, the issue is much bigger than an attorney’s opinion. ObamaCare is strongly opposed by a majority of Kansans – and they don’t like letting Washington politicians and bureaucrats controlling their health care. Instead, this compact would allow Kansans, not Washington insiders, to make their own choices in health care.”

Competitive Governance Action – the Texas-based organization that crafted the legislation – and others, including the Heritage Foundation, also contend that the compact does not need presidential approval.

“I’m not going to pretend to be a constitutional scholar,” said Curtis Ellis, spokesman for Competitive Governance Action. “But the Constitution certainly says nothing about the president having to approve interstate compacts.”

Ellis said he would leave it to attorneys to argue the point in court at the proper time.

“They are right to a certain extent that no court has ever said that the Presentment Clause applies, so in theory it’s an open question,” Jackson said. However, he said, if one examines the Constitution’s structure and precedent it becomes clear that presentment is necessary.

It’s unlikely that President Barack Obama would sign a measure specifically designed to remove states from the Affordable Care Act.

“Oh you want to dismantle my star achievement? Yeah, let’s do that,” Jackson said, laughing at the notion.

“If what you’re using it for is a vehicle to register your discontent with the Affordable Care Act – I mean, if you’re doing that, it does that, that’s what it does,” Jackson said. “I guess the folly would be to believe that it does more than that.”

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