States shouldn’t wait on Supreme Court to oppose Obamacare

Christie Herrera & Sean Riley American Legislative Exchange Council
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Now that the Supreme Court has concluded hearings on the president’s health law, many states find themselves in a holding pattern, postponing major decisions about the law until they get some constitutional clarity.

But states shouldn’t wait on the Supreme Court to oppose implementation of this harmful law.

While the Court’s opinion will certainly be important (and historic), it will not change the policy facts on the ground — this law represents a confluence of misguided policies that centralize power in the hands of federal bureaucrats, and it fails to address underlying problems with our health care system.

From the individual mandate and Medicaid expansion, to the bureaucratic health insurance exchanges, the federal health law undermines the core principles of federalism and makes health care less affordable and accessible.

First we have the individual mandate, which represents a fundamental shift in the relationship between the federal government, the states and the people. Oral arguments largely focused on whether the federal government could identify any “limiting principle” for individuals — in other words, how could the federal government’s expansive view of the Commerce Clause force you to buy health insurance but not make you eat broccoli?

The mandate also poses serious federalism implications for the states. The Court has previously held that protecting the public health is an essential component of the states’ traditional police power — a power that our Constitution denies to the federal government. A one-size-fits-all federal mandate will crowd out innovative health reforms that legislators have long championed at the state level.

Earlier this month, the Congressional Budget Office found that the federal health law’s price tag nearly doubles to $1.76 trillion when fully implemented. One of the reasons for the jump is the law’s Medicaid expansion, which collectively forces states to add 25 million Americans onto an already-unsustainable program by 2020 — and pay $64 billion for the privilege.

While proponents argue that Medicaid is voluntary, many states believe there is little choice involved when the federal government has the power to tax citizens in the states, returning that money only if states comply with ever-increasing Medicaid mandates.

States have already been making difficult cuts to education, transportation and public safety. Even though Medicaid spending currently represents the biggest budget item for states — over 20%, more than education — the law seeks to further expand Medicaid rolls at the expense of other priorities.

Unfortunately, the news for people on Medicaid isn’t getting better. Increasing numbers of doctors aren’t accepting new Medicaid patients. People on Medicaid now are twice as likely as the uninsured to use the emergency room, because they can’t access primary care. The federal health law will only make a big problem even bigger.

Finally, the states are faced with health insurance exchanges, new bureaucracies designed to facilitate the federal takeover of health insurance. Governors in Georgia, Virginia, New Jersey and elsewhere are waiting on the Court’s ruling to decide whether to implement a state-based exchange or let the federal government set one up instead.

There’s no need to wait. These exchanges are a bad deal for states both now and in the future — and the Court’s decision won’t change that reality. Federal bureaucrats must approve every detail of state exchanges. Meanwhile, states will be on the hook for the cost of operating the exchange after 2015, when the federal money runs out.

Besides, only two states saw fit to establish an exchange prior to the federal law: Massachusetts and Utah. Most of the states were wise to reject exchanges then, and they should continue to reject them today.

With all eyes now focused on the Supreme Court, the merits of the federal health law are being confused with the debate over the law’s constitutionality. But it’s the job of the Court to interpret the law, not decide whether it represents good public policy.

Luckily, some states have taken up the task of rejecting the bad policies in the federal health law, and are working toward solutions that make health care more secure, affordable and accessible regardless of the Court’s decision. More should join the cause.

Fourteen states have passed laws rejecting the individual mandate, and four more states will consider the measure in November. Thirty-three governors have petitioned the federal government for more flexibility and autonomy within Medicaid. Just 15 states have passed legislation to set up state-based exchanges.

Positive reforms are also on the horizon. States like Maine, Georgia, Wyoming and Washington are developing programs that would allow citizens to purchase quality, affordable health coverage across state lines. Florida and Rhode Island have implemented successful Medicaid reforms that lower costs and improve health outcomes.

While the Court may uphold the federal health law, it cannot turn a collection of subsidies, mandates, taxes and bureaucracies into a solution for the nation’s health care crisis. The states won’t be able to either.

Christie Herrera is the director of the Health and Human Services Task Force at the American Legislative Exchange Council, an association of conservative state legislators. Sean Riley is a legislative analyst at ALEC.