With the recent declaration by Governor Scott Walker that Wisconsin will not set up an exchange, many are questioning whether Obamacare (Affordable Care Act) can be implemeted in Wisconsin. To date, 19 other states have refused to st up exchanges and more may follow. The short answer is a definitive "maybe."
While the option is still there for the federal government to set up the exchange, the legality is still in question. Without the exchange, there is no funding. And without the funding, the Act could be dead in the water.
To get to the heart of the legal matter, one must simply go to the Tenth Amendment, which states the following:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The powers that are delegated to the federal government are found in Article 1, Section 8 of the Unitied States Constitution. Where the confusion comes to play is in the most recent ruling on the ACA on whether the Act is constitutional. Some say that because of the decision in the affirmative, the Act is constitutional. But the courts were not responding to the specific question of whether or not the Act violated the 10th Amendment. In essence, the court ruled that the penalty for non-compliance to obtaining health care insurance, was a tax and not a penalty.
The ruling relied on the commerce clause of the Enumerated Powers. But the question remains, and with good cause, is whether the states can nullify the Act through state legislation should the federal government set up an exchange which mandates every individual must carry a specific health care policy with specific policy requirements. Hence, the mandate portion of the Act becomes in play and subject to challenge of the Tenth Amendment.
The Tenth Amendment has rarely been challenged, but there is at least one modern day case that could shutdown the ACA if specifically challenged under the amendment. In Printz v. United States, 521 U.S. 898 (1997), the Brady Handgun Violence Protection Act was challenged because it required the state and local law enforcement agencies to conduct background checks. Justice Anthony Scalia, wrote in the majority opinion and applied a previous ruling in New York v. United States, which showed that the law violated the Tenth Amendment. Since the act "forced participation of the State's executive in the actual administration of a federal program", it was unconstitutional.
This may show the motive behind why Wisconsin and 18 other states have rejected setting up the exchanges and why there many still be a challenge coming forth in the Supreme Court. To be sure, the end of the fight to abolish ACA is still ongoing, and that there still is a chance to overturn the Act.
Meanwhile, without the exchange, some have claimed that the ACA is unenforceable, so individuals and corporations in a state with no state exchange in place, are not subject to the Act, unless they commence business in states that do, or are subject to like regulations regarding foreign trade. This is where the federal government will probably rely it's case on, through the Commerce Clause.
Two states, Virginia and Idaho, have gone so far as to declare the ACA null and void. Both states have declared that individuals in their respective states cannot be forced to purchase health insurance, and Idaho has further instructed its Attorney General to sue the federal government if they try to enforce the mandate. The idea of nullification is being considered by all 19 states that rejected setting up exchanges. By doing so, this places the burden on the federal government to file suit with the states, and thus in the meantime, those states can choose to ignore the ACA.
Much of this is left to be settled for sure, and Wisconsin can take the same steps as Virginia and Idaho to delay implementation until it is heard by the Supreme Court. But again, there are more questions than answers at this point.