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Need to Know: Health

The Tea Party’s Next Move

Activists are planning a frontal assault on federal health care programs by repurposing an obscure constitutional provision.

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Power to the states: Tea Party Patriots co-founder Mark Meckler wants legislatures to take over federal health programs.(Chet Susslin)

Like a fast-mutating organism, the tea party morphed from protesting in 2009 to politicking in 2010. Now, in 2011, it is morphing again, this time into a force attempting to shape national policy.

The target is health care, not too surprisingly. What is more surprising is the movement’s idiosyncratic and radical choice of tactics. Tea partiers and other conservative activists hope to repurpose a little-known constitutional provision called the compacts clause to shift almost all federal health programs—including Medicare and Medicaid, the giant entitlements—to the states.

 

“This is bigger than ‘Obamacare,’ ” says Leo Linbeck III, a small-business owner in Houston who has emerged as a national leader of the effort. “This is about whether we’re going to take a step back toward self-governance on a sixth of the economy.”

Although success seems a long shot at best—and the project is more complicated in practice than its supporters seem to realize—the drive for a so-called health care compact may well serve its purpose politically. That is, it may sharpen the debate over health care and the size of government just in time for the Republican primaries next year, bedeviling Democrats and moderate Republicans in the process.

The constitutional provision at issue is Article I, Section 10: “No state shall, without the consent of Congress … enter into any agreement or compact with another state.”

 

Compacts are binding agreements between states. Worried that states would use such agreements to usurp the federal government’s powers (for instance, by colluding to establish preferential trade zones or de facto national taxes), the Founders required Congress’s approval for any interstate deal that might impinge on federal authority.

But in so doing, they also indirectly established a process for states to seek federal grants of authority for interstate arrangements. More than 200 such compacts are in force today. Most people haven’t heard of them because they are generally mundane and uncontroversial, having to do with such things as borders, water rights, agricultural marketing, interstate law enforcement, and transportation. (The Port Authority of New York and New Jersey and the Washington Metropolitan Area Transit Authority are examples.)

The idea of repurposing this obscure constitutional mechanism for a frontal assault on federal power originates, by all accounts, with a Houston-based lawyer named Ted Cruz. A former Supreme Court clerk, Justice Department official, and Texas state solicitor general, Cruz is running as a Republican for the U.S. Senate seat being vacated by retiring incumbent Kay Bailey Hutchison, R-Texas. In an August meeting with Linbeck and several other conservative activists, he suggested taking a look at the compacts clause as a way to rein in Washington.

They did, and they liked what they saw. In November, they presented the idea to the Tea Party Patriots, the largest national coordinating organization of tea party activists. The response was immediate and enthusiastic, with coordinators in more than 30 states volunteering to lead the charge.

 

By January, compact supporters had model legislative language in hand (a version is available online at healthcarecompact.com/compact). This month, supporters are introducing health care compact bills in half a dozen or so state legislatures, with more in the pipeline.

 

By this fall or early next year, activists hope to have a majority of states on board.

 

An ordinary compact sets up an interstate policy framework or regulatory body. This one is different—and unprecedented, as far as anyone knows. As usual, Congress would approve the compact and individual states could then choose whether to join. But the only interstate cooperation authorized by the compact would be a toothless advisory board. Rather than joining forces with its neighbors to pursue some common goal or policy, each participating state would simply be free to write its own health policy.

“It’s saying ‘thanks but no thanks’ to the [federal] regulations,” says Eric O’Keefe, a Chicago-based activist who worked in the term-limits movement. “Let us keep our money; you keep your regulations. We’ll take care of it.”

The impetus for the proposal, activists say, was last year’s controversial and, among conservatives, universally loathed federal health care reform. But supporters insist that the compact’s goal extends far beyond revoking or opting out of that reform. The federal government’s intrusive bungling broke the health care system long ago, they argue, and the best way to fix it is with local solutions developed through state-led experimentation.

Within their own borders, therefore, states participating in the compact could fashion any sort of health system they wanted. “If a state really wants to do a single-payer system, they should do it,” says Linbeck. “What it’s essentially saying is we’re not going to have a one-size-fits-all program any more. We’re going to move the decision closer to the people and we’re going to allow a lot of different solutions.”

This article appears in the February 12, 2011 edition of National Journal Magazine.

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