West Virginia sues Obama over the “like it, keep it” fix

Remember the “like it, keep it” fiasco and the Obama administration’s effort to fix it? West Virginia certainly does. Two weeks ago, it filed a lawsuit challenging the legality of the administrative fix.

Here’s the background. The ACA imposes a bunch of new rules on insurers. Among other things, they can’t decline to cover you or charge you more because you have a preexisting condition. That’s great news for those who’d been priced out of the insurance markets because of poor health. But it’s not such good news for those who had really cheap health plans before the ACA took effect. Those plans were so cheap in large part because insurers could refuse to cover unhealthy people.

The ACA prohibited the sale of these non-compliant plans as of January 1, 2014. The preceding fall, insurers began sending out cancelation notices to people with non-compliant plans. The cancelations clashed with the President’s public commitment that, “If you like your health plan, you can keep your health plan.”

Under intense political pressure, the administration released a letter to state insurance commissioners encouraging them to decline to enforce the ACA’s new insurance rules for a year (now extended to three years). That gave state insurance commissioners a choice about whether to allow insurers to re-issue their recently canceled, noncompliant plans. About two-thirds of the states said that insurers could re-issue noncompliant plans; the other third declined the administration’s invitation.

West Virginia fell in the first camp. But it’s apparently not pleased that it had to make the choice at all. So West Virginia sued, arguing that the President has violated his constitutional duty to “take Care that the Laws be faithfully executed.”

On the merits, I have considerable sympathy for the legal claim. In my judgment, the administrative fix is unlawful and sets a troubling precedent for future administrations. But what’s West Virginia’s injury? Does it have standing to sue?

The state thinks so. Prior to the announcement of the fix, if states declined to enforce the ACA, the federal government would step in to enforce on their behalf. As West Virginia’s complaint explains:

[U]nder the regime provided by the ACA, the States lacked the authority to determine whether individual health plans made unlawful by the ACA would be sold within their borders. Whatever a State decided to do, the sale of non-compliant plans would be punished—either by the State or by HHS.

After the administrative fix, however, West Virginia had to make a choice about whether the ACA would apply at all in the state—and then take the political lumps for whatever choice it made. In the state’s view, that’s injury enough to get into court.

I have serious reservations about this argument. For all practical purposes, West Virginia faced the same choice before and after the administrative fix: whether to use state resources to enforce the ACA. And it was a bona fide choice: prior to the fix, insurance commissioners in six states had announced they wouldn’t enforce the statute.

All the administrative fix did was change the political stakes of a non-enforcement decision. But that sort of shifting-the-political-stakes claim doesn’t tend to fare well in standing analysis. It’s too speculative—too non-concrete—to license federal courts to referee what is, even in West Virginia’s telling, essentially a fight about political optics.

The case might be different if West Virginia was begging the federal government to enforce a law that would protect the “health and prosperity” of its residents. But the complaint says that “West Virginia believes that its citizens should be able to keep their individual health insurance plans if they like them.” It’s downright weird for the state to complain about being given a choice that allows its citizens to do just that.

The West Virginia lawsuit will thus, I think, join the scrap heap of misbegotten Obamacare cases— including the House’s lawsuit against the employer-mandate delays and Ron Johnson’s suit against the Hill fix—that ask the courts to intercede on behalf of those with a political gripe but no real injury.


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