Is that within federal government's power?- House and Senate to basically we basically can't sort the mess left behind one bill so just let the State government put in legislation to fix it up. Could they for instance have done it for the Affordable Care Act?

  • 2
    Removing the hierarchy of legislation (fed trumps state) would likely cause all sorts of challenges for the juducial.
    – user1530
    Apr 7, 2017 at 7:17
  • There are a legislation positions where state and local is trumping federal at the moment such as marijuana. Apr 8, 2017 at 0:46
  • No, that's not the case at all. Federal law still trumps. It's just that (at least during the last administration) it was decided that the feds wouldn't enforce the law. But the law is still on the books and still trumps the state laws (and it looks like things might soon get messy because of that).
    – user1530
    Apr 8, 2017 at 2:47
  • This question is a bit jumbled. Not entirely sure what is being asked.
    – ohwilleke
    Jun 6, 2017 at 17:29
  • Well, sure. Even though it was the courts that ruled that mandating Medicaid expansion was an overreach, there are plenty of laws and rules that are passed that leave it to the states to opt in or to customize their solutions. I wouldn't think you'd simultaneously pass a law defining how something works and include the allowance to completely ignore it in the same law, though. Why bother passing it in the first place? Jun 6, 2017 at 18:14

3 Answers 3


They could have, but it wasn't a particularly popular solution. It left in place most of the Obamacare taxes and the Obamacare spending.

That's the real problem. The states don't want to pass their own healthcare plans, as they want the federal government to pay for it. Under Obamacare, the federal government pays for 90% of the Medicaid expansion and 100% of the premium subsidies. If it weren't for that, the federal government could have passed a clean repeal. The states would then, without federal interference, be able to pass their own plans if they wanted to do so.

A clean repeal would not have interfered with federal supremacy. It simply would have returned things to the old status quo. Even the Collins/Cassidy plan wouldn't have impacted federal supremacy. It just offered an option for how the states complied with federal law.

  • A repeal would mean the law isn't there, so there is no 'trumping' of the federal law by the states in that situation.
    – user1530
    Apr 8, 2017 at 2:49

There are many laws that allow the federal government to waive a federal law requirement for a state (the ACA has these and so do many environmental laws).

There are also many laws that expressly do not pre-empt state law on the same subject (e.g. the Fair Debt Collection Practices Act).

There are a few that vest court jurisdiction to enforce a federal law exclusively in state courts (e.g. the Junk Fax law).

And, there are federal laws and court doctrines that incorporate local state law when applying state law (e.g. bankruptcy exemptions from creditors at 11 U.S.C. § 522(2), a variety of state substantive law principles under the Erie doctrine, the Assimilative Crimes Act applicable in federal territories).


Is it theoretically possible? Sure. The federal government can generally pass whatever laws it wants (obviously must me constitutionally abiding). Therefore it can pass a law that structures the federal healthcare system in such a way that states can override chunks of it over time.

How would this work? What would the details be? Would it even be realistic in the current political environment? That is very complicated and well beyond the scope of this answer.

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