When House Speaker John Boehner declared Obamacare the “law of the land” two days after his party took a drubbing in the election, the real reveal came in what happened next: he walked it back in record speed and re-affirmed his commitment to getting rid of it.
Having failed to repeal the Affordable Care Act at the national level, Republicans are now dedicating their efforts to botching its implementation at the state level. And having failed to invalidate the law at the Supreme Court, they’re now seeking alternate legal avenues to weaken its regulations.
Republican governors are turning down the law’s Medicaid expansion, a move made easier by the Supreme Court decision that made the expansion optional. Among them are Bobby Jindal of Louisiana, Phil Bryant of Mississippi and Nikki Haley of South Carolina. Given that the federal government pays the vast majority of the cost in the medium term, these states are, in effect, rejecting an extraordinarily generous financial incentive to insure their residents.
Implementing the expansion in full would insure about 17 million people. “If [many states] don’t accept the Medicaid expansion you’re going to have millions of low income Americans who will remain uninsured and without access to health care,” said Tim Jost, a health care expert at Washington and Lee University who supports the Affordable Care Act.
Some dozen Republican governors are refusing — and about a dozen more are considering refusing — to build state-based insurance exchanges, the law’s primary vehicle for expanding and improving coverage. These governors, which include John Kasich of Ohio, Rick Perry of Texas, Nathan Deal of Georgia and Mary Fallin of Oklahoma, are consequently empowering the federal government to build one for them.
The law does not set aside funds for the federal government to construct or operate exchanges, creating implementation headaches for the Obama administration. But it can be self-sustained through user fees, and Jost argues that state residents with governors who are uncommitted would be better served by a federal exchange that wants to cover them.
Conservative thinkers are also resurrecting their argument, championed by top Republicans, that federally-administered exchanges lack the legal authority to provide tax subsidies, which are critical to making them work. Although the language of the law is vague on this question, the IRS has said federal exchanges are permitted to provide the premium subsidies.
“I don’t believe they’re going to win on that one,” Jost said. “If they did win that would do serious damage to what Congress intended, which is to have a federal fallback exchange.”
Utah Gov. Gary Herbert (R) is flirting with continuing his state’s existing insurance exchange even though it does not comply with rules in the Affordable Care Act.
Meanwhile, conservative advocates are advancing a separate legal challenge to the law’s requirement that insurance plans cover contraception for women as part of a copay-free preventive services package. Cheered on by congressional Republicans, Catholic institutions such as the Archdiocese of Washington and University of Notre Dame are moving forward with lawsuits that could end up in the Supreme Court.
All in all, Republicans and conservatives are telegraphing that they’re not chastened by years of failed efforts to wipe away Obamacare. The crusade shows no signs of ending, and could still do serious damage to the law.
Sahil Kapur is a congressional reporter for TPM. He previously covered politics and public policy for numerous publications including The Guardian and The Huffington Post. He can be reached at sahil [at] talkingpointsmemo.com.