November 19 2012
President Obama and his party in Congress waved a magic wand and gave us the Affordable Care Act. Now that President Obama has been reelected, we're stuck with this monstrosity, right?
Not so fast, say James Capretta and Yuval Levin in today’s Wall Street Journal.
After the magic wand has been waved, reality inevitably sets in: the largely unread Affordable Care Act must be implemented, and that isn’t going to be as easy as getting it through a Democratic Congress (not that that was very easy, if you recall the unsavory deals it required).
The Obama administration must depend on the states to implement the law. But governors of many states know how harmful the law will be. Capretta and Levin write:
Republicans will hold 30 governorships starting in January, and at last week's meeting of the Republican Governors Association they made it clear that they remain highly critical of the health law. Some Republican governors—including incoming RGA Chairman Bobby Jindal of Louisiana, Ohio's John Kasich, Wisconsin's Scott Walker and Maine's Paul LePage—have already said they won't do the federal government's bidding. Several Democratic governors, including Missouri's Jay Nixon and West Virginia's Earl Ray Tomblin, have also expressed serious concerns.
Talk of the law's inevitability is intended to pressure these governors into implementing it on the administration's behalf. But states still have two key choices to make that together will put them in the driver's seat: whether to create state health-insurance exchanges, and whether to expand Medicaid. They should say "no" to both.
At its core, ObamaCare is a massive entitlement expansion. Between vastly increased Medicaid eligibility and new premium subsidies, it is expected to bring 30 million more people onto the federal government's entitlement rolls. The law anticipates that the states will take on the burden of implementing the expansions, but states can opt out of both.
Running the exchanges would be an administrative nightmare for states, requiring a complicated set of rules, mandates, databases and interfaces to establish eligibility, funnel subsidies, and facilitate purchases. All of this would have to take place under broad and often incoherent statutory requirements and federal regulations that have yet to be written.
Rather than exercising state authority by creating state insurance exchanges, states would simply be enforcing federal law and regulations, Capretta and Yuval point out. Moreover, the fiscal impact of complying would be profoundly negative for the states. The governors know this.
Since a number of states have missed the deadline for submitting plans for state-wide exchanges, HHS Secretary Kathleen Sebelius extended the deadline to December 14, giving her more time to bludgeon governors into compliance. If states refuse to set up exchanges, the burden by law returns to the federal government. Operating the exchanges might well prove beyond the capacity of the administration.
Levin and Capretta conclude:
President Obama won re-election and Democrats maintained control of the Senate this month, but the states hold the future of ObamaCare in their hands. Knowing the harm the law would do to their citizens, to the economy and to American health care, governors should refuse to become its enablers.
This development should come as a surprise to those who voted for the law and haven't yet gotten around to reading it.