Florida Gov. Rick Scott, a longtime foe of the Obama administration's health overhaul, says he will not allow the state to implement the 18-month-old health law for a fundamental reason:
"It's not the law of the land," said Scott, an attorney and co-founder of the Columbia/HCA hospital chain. "I don't believe it will ever be the law of the land."
Scott's statements, made in West Palm Beach during a Palm Beach Post editorial board meeting on Nov. 17, have caused a stir. While they may resonate with an estimated 47 percent of the U.S. population who tell pollsters the law should be repealed, they put him at odds with the U.S. Constitution, argued Timothy Jost, a law professor at Washington and Lee University.
"If this is his position, then he is violating his oath of office, and that is a serious thing that I think the voters of Florida ought to be concerned about," said Jost, co-author of a widely used health law textbook. "His position is ridiculous and he should (and probably does) know better."
The health law does not force states to do anything but "get out of the way and let the federal government enforce and implement the law," Jost said.
Scott has told state agency heads to return planning grants they received before he became governor, and that they should not apply for tens of millions more.
And so Florida is not preparing to open an insurance exchange in 2014 for individuals and small businesses. He has refused more than $37 million that would have helped pay to keep disabled seniors in their homes and out of nursing homes by paying for support services.
And he has turned away money for monitoring insurance companies.
The state should never accept money for programs that create dependency and aren't sustainable over the long term, Scott explained.
Still, Floridians are experiencing the Affordable Care Act's insurance reforms, and the federal government is enforcing and enacting the law in Florida regardless of whether the state acts, said Keith Maley, press secretary at the U.S. Department of Health and Human Services.
Maley said the federal government has set up a high-risk insurance pool for states that declined to do so. It's now serving 2,381 Floridians whose pre-existing conditions made it impossible for them to find coverage elsewhere.
About 78,000 young adults in Florida have become eligible for coverage on their parents' health plan, Maley said.
And more than 250,000 seniors have received rebate checks and are getting medication discounts because they exceeded their Medicare drug benefit and fall into the so-called doughnut hole, Maley said.
Further, Maley said, federal officials are prepared to enforce federal insurance reforms, even if the state refuses.
"The Affordable Care Act was signed into law on March 23, 2010, and is the law of the land," Maley said. "We are confident the law is constitutional and will be upheld by the Supreme Court."
Scott's stance has widespread support in Tallahassee.
House Speaker Dean Cannon, R-Winter Park, feels that given the legal and political challenges, there's too much uncertainty to invest precious state resources into implementing the new law now. He's especially concerned that the health law will double the number of Floridians on Medicaid, said Cannon's spokesman, Ryan Duffy.
"I don't think the federal government has the right to demand that citizens purchase a particular product," said Sen. Joe Negron, R-Palm City.
Florida's insurance commissioner, Kevin McCarty, maintains that his agency cannot enforce any part of the federal law unless the Florida Legislature passes what's called "enabling legislation," because the federal government delegates the power to regulate insurers to the states.
And so Florida consumers can't turn to McCarty's office if their insurer refuses to insure a child under age 19 who has a pre-existing medical condition.
Nor can they turn to him if their insurer says coverage denials cannot be appealed.
Likewise, consumers can't expect help from McCarty's office if their insurance company spends less than 80 percent of their premium on benefits, as opposed to overhead, salaries and administrative costs.
Maley said the federal government will protect Floridians on that issue, too.
"If the state chooses not to enforce that, the federal government will," Maley said.
The issue may be settled in June, when the U.S. Supreme Court is expected to rule, after a hearing in March.
Meanwhile, Jost and other legal experts said, the law remains in full force, with an asterisk. In Florida and the other states subject to the 11th Circuit Court of Appeals, the mandatory insurance clause, which makes it possible to have coverage for people with pre-existing conditions, is not in force. But that clause doesn't come into play until 2014.
"Under the United States Constitution, a federal statute becomes the supreme law of the land once it is passed by the House and Senate and signed by the president," Jost said. "The Supreme Court can subsequently hold