Delaying is a gamble

There were two stories in Wonkbook today that I think are interesting when taken together.  The first is by Sarah Kliff:

Despite their best efforts, tea party activists could not stop Congress from passing health reform last year.

Now, they’re finding surprising success doing the next best thing: blocking the law’s implementation.

In South Carolina, tea party activists have been picking off Republican co-sponsors of a health exchange bill, getting even the committee chairman who would oversee the bill to turn against it.

A Montana legislator who ran on a tea party platform has successfully blocked multiple health exchange bills, persuading his colleagues to instead move forward with legislation that would specifically bar the state from setting up a marketplace.

And in Georgia, tea party protests forced Gov. Nathan Deal to shelve exchange legislation that the Legislature had worked on for months.

As we’ve said many times on this blog, states matter when it comes to the PPACA. In this case, many states, and local activists, are attempting to delay implementation of the exchanges. Not only is this a sign of protest, it raises the stakes as 2014 looms closer and closer.

Of course, if the law is unconstitutional, as many believe it to be, then there shouldn’t be a problem. The Supreme Court will rule on the individual mandate long before 2014, and if the entire law is stricken, then these states should be fine. Of course, it’s entirely possible that the individual mandate will be severed from the PPACA, leaving the exchanges intact. Of course, the law could be found constitutional. That’s not me speaking, it’s the attorney general in Virginia, the one bringing the case to court:

Virginia’s Republican Attorney General Ken Cuccinelli has defined himself as one of the country’s leading conservatives with his lawsuit against the health care overhaul law. Filed within minutes after the law passed in March 2010, the suit could set limits on Congress’ power…

Q. So what do you think are your chances of winning?

I am cautiously optimistic. I’d say, above 50 percent, no higher than 60 percent, because the nature of constitutional cases is very unpredictable. A lot of people presume the government will win, because it usually does, but there have been four major Commerce Clause cases and the court ruled in favor of the limited-government side in two of the four, so it isn’t as if we always lose and that is within the past 16 years.

Remember, this isn’t the administration talking, it’s the attorney general who’s achieved the biggest decision against the PPACA so far. He’s somewhere between 50% and 60% sure he’ll win. That’s a gamble.

The problem here is that if (a) he loses or (b) he wins, but the individual mandate is severed from the PPACA, then the rest of the law will stand. And the PPACA clearly states that if the states don’t have an exchange, then the federal government will create and run one for them. It’s going to take some time to set one up. If activists and politicians delay too long now, then they won’t be able to get one in place should they lose the gamble.

If that happens, then not only will they have lost in court, but they will also have increased the federal role in health care in their states. They will achieve exactly what they were hoping to stop.

It takes guts to double down; some of them, though, might want to play a bit more conservatively.


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