Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform

Abstract

This Article makes the affirmative case for the widespread trend of state resistance to the recently enacted, comprehensive federal health reform law, the Patient Protection and Affordable Care Act of 2010, or ACA. A significant number of states have engaged in various forms of objection to the new federal laws, including filing lawsuits against the federal government, enacting laws providing that ACA will not apply to residents of the state, and refusing to cooperate with implementing the new laws. This Article identifies reasons why those actions should not be disregarded simply as Tea Party antics or election-year gamesmanship but instead should be considered valuable to health care policymaking and federal-state relations. In making the case for rhetorical federalism, the Article examines and expands previously articulated theories, including uncooperative federalism and opportunistic federalism. Key provisions of ACA implicating states are examined under the operative theories.

Keywords: Health law, health reform, federalism

JEL Classification: D70, D80, H11, H40, H51, H77, I11, I18, I38, K32, L51, G22