By @BGinKC

Before I tear into Pantsless Pete, let me say I am kinda rooting for the recalcitant idiocy of the right wingnuts in this state to carry the day and the state to refuse to set up a healthcare exchange. See, I don’t trust the mental defectives in the General Assembly to do a competent job of it. I have a hell of a lot more faith in the work-a-day civil servants at the HHS than I do any committee or commission that would come out of our right-wingnut-controlled statehouse.

I am of the opinion that the best thing they can do for us is to keep charging up that hill and fighting until the last dog dies against the recently-upheld health law. And in that regard, Peter Kinder is not disappointing me.

Republican Lt. Gov. Peter Kinder is once again taking his opposition to the federal health care law to court, this time promising a lawsuit challenging the language that will appear on Missouri’s Nov. 6 ballot.

The language — crafted by Democratic Secretary of State Robin Carnahan — attempts to summarize a measure passed by the Republican-dominated General Assembly that would allow voters to decide whether the governor should be allowed to set up an online marketplace for patients to shop for insurance policies.

These health care exchanges are a key provision of President Barack Obama’s health care reform law.

The ballot language asks voters: “Shall Missouri law be amended to deny individuals, families and small businesses the ability to access affordable health care plans through a state-based health benefit exchange unless authorized by statute, initiative or referendum or through an exchange operated by the federal government as required by the federal health care act?”

The wording of the ballot initiative was met with outrage — outrage I say!!! — on the part of the right-wing fringe that has taken over not just the Missouri GOP but the national party as well. They found the language biased, because they were looking for something more along the lines of “Shall Missouri law be amended to prevent the federal government from forcing Muslim-Kenyan-Socialist-Nazi healthcare exchanges on the good people of Missouri ever, ever, ever!” and anything short of that would be met with charges that it was “extremely biased.” It was as predictable as the sun rising in the east. (They really ought to add a new trick or two to their repertoire.)

Kinder, our current state embarrassment and soon-to-be-former Lt. Governor, announced on Thursday that he would be filing a lawsuit to challenge the ballot language. “In my 19 years in public office, I have seen no ballot language proposed by a secretary of state that even approaches this in its outrageousness. She words it as though the Obama White House had written the language. There is nothing fair or accurate about that ballot summary,” he fumed. Apparently, he finds it morally repugnant and personally reprehensible that the Secretary of State would draft ballot language that tells the people of the state what, exactly, the republican gameplan is for them.

That, you see, would be “biased.”

For their part, the republicans wanted to put it on the ballot this fall because they are deeply concerned that Governor Nixon might break with his longstanding pattern of behavior and set one up by executive fiat — a concern that is truly ludicrous, because Nixon would rather drive spikes through his eyes and bathe in hydrochloric acid than do anything, ever, that would make the Democratic  base happy and get us to stop sticking pins in our voodoo doll likenesses of him.

Kinder says he intends to raise private funds for the challenge, much like he did in 2010 when he challenged the healthcare law itself and created a non-profit organization to run the money to pay the attorneys through.

The exchanges that Kinder and the rest of the clowns in the Missouri GOP are so dead-set on preventing Missourians from having access to will be on-line marketplaces that will allow individuals and small businesses to compare premiums and benefit packages and purchase coverage. The idea behind the exchanges is that they will use the free market to regulate and control costs — something that republicans are all for when it suits them, but that they find anathema when it’s a cornerstone of a Democratic president’s signature health reform law.

But what I really find amusing is the silliness — and frankly, the constitutional ignorance — of our republican state legislators who are charging ahead with their protests of the law, even though it’s a totally, completely, entirely meaningless exercise in futility.

The Affordable Care Act is constitutional and the mandate has been upheld. So the exchanges will be set up and the residents of Missouri will be able to buy insurance from it, and the state does not have the power to keep us from doing so; no more than they can pass a law that says Missouri residents can’t collect our Social Security or Medicare or VA benefits because the right wingnuts have a bug up their collective butt about “big gubmint” being the evilest evil ever. Also…Liberty! Tyranny! Freedom! Consti-tooooo-shun!!!1!

Federal law is supreme and trumps state law when the two are in conflict. That is set forth in both the Supremacy Clause and reinforced by the Ninth Amendment. I invite Peter the Tweeter to look both of them up. He can get a pocket copy of the Constitution from the ACLU. They pass them out for free. Or he can get off Twitter for a minute and go to the UMKC School of Law website and read up on it.

The preemption doctrine derives from the Supremacy Clause of the Constitution which states that the “Constitution and the laws of the United States…shall be the supreme law of the land…anything in the constitutions or laws of any State to the contrary notwithstanding.”  This means of course, that any federal law–even a regulation of a federal agency–trumps any conflicting state law.

Preemption can be either express or implied.  When Congress chooses to expressly preempt state law, the only question for courts becomes determining whether the challenged state law is one that the federal law is intended to preempt.  Implied preemption presents more difficult issues, at least when the state law in question does not directly conflict with federal law.  The Court then looks beyond the express language of federal statutes to determine whether Congress has “occupied the field” in which the state is attempting to regulate, or whether a state law directly conflicts with federal law, or whether enforcement of the state law might frustrate federal purposes.

Federal “occupation of the field” occurs, according to the Court in Pennsylvania v Nelson (1956), when there is “no room” left for state regulation.  Courts are to look to the pervasiveness of the federal scheme of regulation, the federal interest at stake, and the danger of frustration of federal goals in making the determination as to whether a challenged state law can stand.

Now let’s assume that the GOP gets their wish and the electorate rejects the ACA. It could happen. Never underestimate the flat-out bullheadedness of some of our outstate brethren to cut off their noses to spite their faces. In this instance, if the voters were to reject  the exchanges either HHS or Justice would step in and file a suit to stay the law and toss it on the grounds that it is unconstitutional, a direct violation of the Supremacy Clause, and probably the Necessary and Proper Clause as well. And the courts would have no choice but to find that the federal government “occupies the field” and the exchange would go into effect, and it would be the one the feds set up because the idiots, cretins, morons and assorted screwballs, whack-jobs, chuckleheads and no-minds in the General Assembly squandered their opportunity to do anything real while they were busy running their silly and frivolous fool’s errand.