Sunday, February 08, 2015

Who would have thought the states would not want to run their own ACA exchanges?

I read over the amicus brief filed by the Virginia Attorney General and others in the case of King v. Burwell now pending before the United States Supreme Court. This is the case about whether all of the "exchanges" are created equal.

I think the words in the Affordable Care Act that support the Petitioner's arguments are in there because of haste and hubris. The proponents of the ACA were sloppy because they did not have much time before they would lose their majority in Congress, and so they made mistakes. They also were naive about the willingness of the states, even the blue states, to set up their own exchanges, so there is language in there that is written in the vocabulary of "cooperative federalism" but with no intention that the "stick" would ever be applied. By cooperative federalism I mean the power of the federal government to get the states to do its  bidding by giving money with conditions - like the federal highway money that the states would have lost by failure to raise the drinking age.

Much the same thing was done with the Medicaid expansion, where the "stick" of losing all of the state's federal funds was viewed by the Chief Justice as so terrible that the Supreme Court struck it down as unconstitutional. The drafters used the vocabulary of "cooperative federalism" with no idea that the states would do anything but cooperate. The choice of words was deliberate, but based on the mistaken assumption that the inclusion of language about the effect of non-compliance was a matter of form and not substance.

No comments: