March 2011

On Monday, the Tennessee legislature voted along party lines to join an interstate compact intended to exempt the state from having to follow the national healthcare law. The state's Republican governor is likely to sign the bill, and at least nine other states are considering similar action. Unfortunately for them, however, no interstate compact is going to free the states from the healthcare law.

And, remarkably, proponents of the interstate compacts -- essentially contracts between two or more states -- are unwittingly helping President Obama's efforts to defend the law in court.

Interstate compacts are just the latest in a growing line of futile efforts to overturn President Obama's signature piece of legislation, the Affordable Care Act. In January, House Republicans voted to repeal the law, although they knew President Obama would veto any such effort. Healthcare opponents also promoted state laws to "nullify" the federal law, despite the clear command in the U.S. Constitution that federal law is supreme over state law.

As those efforts had no chance of working, one can only surmise that they were intended primarily as political theatre.

Compared to these other actions, the interstate compact notion looks promising -- at least so long as one doesn't look too closely.

Interstate compacts are commonplace contractual agreements that states use to handle regional problems. They are used to establish agencies and rules for transportation systems that traverse state lines (like the Metropolitan Area Transit Authority in and around D.C.), waterways between states (like the Port Authority of New York & New Jersey), and any number of other multi-state issues, from environmental protection to waste disposal to cross-border adoption.

Such agreements are perfectly legitimate. In fact, the Constitution itself envisions them. Article I, section 10 of the Constitution provides, "No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State." If Congress consents, therefore, states may enter into binding contracts with other states.

Healthcare opponents are encouraging states to enter into a compact that would exempt them and their residents from the demands of the Affordable Care Act, especially the requirement that most individuals have insurance. Yet such a compact faces the same insurmountable hurdle as the House Republicans' repeal effort back in January. Any such compact would need to be signed by the president.

There is no doubt that we've come a long way in a century. At the time of the first official IWD in 1911, women in the United States could not vote, were barred from serving in the military except as nurses, and lost their U.S. citizenship for the duration of the union if they married a foreign national. Now, of course, circumstances are much different. But there are some stubborn, lingering messages about women's civic roles. We can vote, but women are still barred from some combat positions in the military - positions that often serve as a step up to greater leadership roles. Women can enlist, but only men are required to register and participate in the Selective Service System, and are sometimes threatened with denial of educational loans if they fail to do so. Notably, while even Harvard Law School turned away the ROTC because of the military's discriminatory policies on gays, plain old sex discrimination in the military has not triggered such public outcry. There is tacit acceptance of the message that men are the primary warriors and heroes and that women's proper place is on the home front.

This persistent stereotype also informs a venerable law currently being challenged before the U.S. Supreme Court in Flores-Villar v. U.S. Under that law, the U.S. citizen father of a foreign-born, out-of-wedlock child must jump through a series of hoops in order to transmit U.S. citizenship to his child, including providing proof that he resided in the U.S. for at least five years after his 14th birthday but before the child's birth. A U.S. citizen mother under the same circumstances must simply prove one year of residence at any time prior to the child's birth.