Last week was a good one for opponents of the Obama health-care law, with Judge Vinson’s decision challenging the constitutionality of the entire law and the Senate’s close vote on repeal despite Harry Reid’s stated determination not to let that happen. But while opponents of the law still want to see repeal and have made significant progress along that road, there remains the significant possibility that the bill will not be repealed. Republican members of Congress can and will continue to take the stance that they will accept nothing less than repeal, but governors who have to implement the law lack that luxury. This is the implicit message of Indiana Governor Mitch Daniels’ Wall Street Journal op-ed laying out a solution that states can live with if the law is not repealed or overturned.
In the piece, Daniels calls the bill “a massive mistake,” but he also notes that governors “have no choice but to prepare for the very real possibility that the law takes effect in 2014.” Recognizing the need to be prepared, he lays out a series of six requests that he and 20 other governors have made of HHS secretary Kathleen Sebelius that would allow them to proceed with an approach that will work for their states. The six conditions include flexibility regarding which insurers participate; a waiver of the bill’s costly mandate on coverage; more lenience for consumer-driven plans; the ability to move Medicaid recipients into the exchanges; reimbursement for the full cost of the law; and independent, non-political assessments of the scope of people who would end up on the exchanges. The common theme in the conditions seems to be flexibility for the states to figure out what works best for them.
This is the approach with which we should have started the entire debate. There might have been a bipartisan majority in Congress for a reform plan requiring states to set up exchanges but also giving states far more flexibility to determine the shape and nature of those exchanges. Unfortunately, the Obama administration chose not to pursue that strategy, which is why we are in the unfortunate situation we have today, in which a majority of governors are being asked to implement a law that their respective states are challenging in court.
Some conservatives may wonder if Daniels is giving up on repeal. The truth, however, is that Daniels and the 20 other governors who joined him in the letter to Sebelius have opened up an additional, state-focused path, in addition to the judicial and legislative ones, for eventually ridding the country of the problematic and costly Obama health-care law.