Federalism For Me, But Not For Thee?


Have Senators Scott Brown and Ron Wyden found a federalist solution to reforming ObamaCare? Politico reports on their new proposal to modify the law in order to give states more flexibility: 

Sens. Scott Brown (R-Mass.) and Ron Wyden (D-Ore.) will introduce legislation Thursday allowing states to opt out of the controversial individual-mandate requirement of the health care reform law far sooner than they would under the law passed by Democrats earlier this year.

"States shouldn't be forced by the federal government to adopt a one-size-fits all health care plan. Each state's health care needs are different," Brown says in a statement accompanying the legislation. "Our bill provides flexibility, and allows states like Massachusetts to opt out of portions of the health care law."

The bill is a significant step on both sides of the aisle. It's an effort by a Senate Democrat to ease one of the law's requirements. And it's the first Republican-sponsored effort to modify—rather than repeal—a provision in the law.

I'm not sure this is a bad idea, exactly, but it's less than revolutionary, and it's hardly the happy federalist compromise that supporters seem to want to claim. As modifications go, it's relatively minor: The proposed text doesn't actually add any new options for states; instead, it backs up the date at which they can exercise some options that already existed in the legislation from 2017 to 2014. Now, that could prevent some implementation mess. States interested in opting out of the mandate would not be stuck building a mandate-driven system that they intended to operate for just three years.

But the supposed flexibility the opt-out provision gives the states to innovate is fairly limited. Theoretically, they can get out of the mandate. But to do so, they have to submit a proposal that is judged to cover the same number of people, for the same cost (or less), with the same benefit and coverage levels as mandated in the law. That will make it easier for states—like Sen. Bernie Sanders' home state of Vermont—to experiment with, say, single payer at the state level. But the high bar for coverage set by ObamaCare means that proposals that would rely on higher levels of cost-sharing, on increased use of catastrophic insurance, on allowing consumers to choose what benefits they actually want to pay for are less likely to pass muster.

I'm not even entirely sure how states will get out of the mandate. If, as is my preliminary understanding, they are required to keep some form of guaranteed issue and community rating—insurance regulations requiring insurers to sell to all comers and prohibiting discrimination based on preexisting conditions—then patients will have even less incentive to purchase insurance. 

States that have had those regulations on the books without a mandate have seen their individual markets shrink dramatically. From an individual perspective, it's a totally logical decision: Why pay for insurance when you can get it any time, and without being charged significantly more for existing health factors?

If states attempting to opt out this way are forced to maintain the law's insurance regulations, it will be difficult to ensure that the coverage numbers remain high enough to meet the opt-out test. 

This is why I've been critical of Republican suggestions that we only repeal the mandate (which is widely disliked) and not the insurance regulations (which are widely liked). The same potential problems apply here. 

So perhaps this bill would avoid requiring a few states to go through the motions of set up compliant systems they intended to dismantle a few years later. But the most significant effect of the change will probably be to allow liberal states like Vermont or California to pursue something like single payer, or a government-run insurance option, even earlier, while continuing to restrict the choices of states that might like to pursue more consumer-driven systems. It's added flexibility, sure, but it really only bends one way. The result is a sort of federalism for me, but not for thee.

NEXT: You Don't Have to Sleep at Home, but You Can't Sleep Here

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  1. I think the point of repealing the mandate is that it would cripple the finances of ObamaCare and force a more substantive repeal or reform.

    1. I think the actual effect of repealing the mandate alone would be to cripple private insurance companies, requiring the State to step in and fill the void.

  2. God but this is some weak shit. The Republicans should talk about one thing, and one thing only, on ObamaCare:

    (1) Repeal in its entirety.

    That and

    (2) Defund all implementation activity.

    All this farting around the edges just cements in place, politically, as the Almighty Status Quo.

    1. Agreed.

    2. If you think that Team Red has ANY interest whatsoever in repealing Obamacare, I have a bridge to sell you.

    3. ObamaCare will only be repealed in some yet-unwritten alternate history novel.

      Liberals have principles. Shitty principles, but principles.

      Republicans have none.

    4. Exactly. And repeal needs to be attached to every single act of congress. EVERY single one. Nothing gets thru the house without it.

  3. People are retarded.
    I've tried repeatedly to explain to liberals why nobody would purchase insurance if they could wait until they are sick to do so. The only response I get is for them to argue for single payer.

    They are either mentally disabled, or they are disingenuous liars.

    1. They are either mentally disabled, or they are disingenuous liars.

      You say this as if these are mutually exclusive traits.

    2. Hazel
      In theory wouldn't single payer just treat health care services the way many libertarians would treat police services? If you need the service you get it and taxes pay the bill.

      1. So under single payer, libertarians will like doctors as much as they like the police now?

        1. Not a bad point. I've got some pretty mixed feelings about single payer. On the hand I think that, at least in theory, it's not Satanic Socialism inherently evil and unjust. But I think there are massive problems likely inherent in implication and a bunch of unintended consequences to watch out for. Also I'm the kind of liberal wary as hell of government power because the government can abuse it, so I'm hesitant to give it control over another major sector of life.

          1. Also I'm the kind of liberal wary as hell of government power because the government can abuse it

            Yet another liberal contradiction in terms.

            If you were leary, you wouldn't give them the power. There would be no Cathy "On the one hand....but then on the other....." going through your head.

            1. Uh, guys, the word is "leery".

              Timothy Leary's dead.

          2. The problems you've listed are the inherently evil and unjust parts of Socialism. The problem with Socialism is not that evil people happen to get on top in various situations, it's the terrible incentives that it provides. Sometimes those incentives help evil people succeed and get on top, but it's not random.

            Socialism is forced labor.

      2. The difference between healthcare and police forces is that police forces protect you from other people, of which there are a finite number, and healthcare protects you from a potentially infinite number of calamities due to the inherent fact that we're all mortal.

        Single payer healthcare can't and won't be a service that "you get if you need it". It will be inevititably be rationed. And due to it's single payer nature you will not be able to get it if the state decides not to pay for it, no matter how much money you have, because it will be illegal to do so.

        Well, unless you want to go to some kind of illegal back alley doctor who is willing to break the law to offer medical services for private payment.

        1. That is, I should say, unlike with police forces, where if you find their service inadequate, nobody is going to stop you from going to the private mareket and hiring private security guards.

          And the state can never go bankrupt supplying an unlimited need for last-ditch medical care.
          Theoretically, under an unrationed single-payer system, we could all end up comatose on heart and lung machines while the economy collapses. Even the government has to say no at some point.

          1. er... I mean the state can't go bankrupt suplying an infinite need for last-ditch police service.

        2. Police protect you from criminal incidents and such, which there are a potentially infinite number (or rather a potentially huge number). Police protection is in fact rationed quite a bit.

          1. So, you'd be okay with rationing the more trivial basic health care, then, and just covering really serious illnesses, perhaps?

            Sort of the bike theft analogy. In your universal health care system, the government wouldn't pay for flu shots or checkups, but only massive coronarys?

  4. You want to see what the future holds for the glorious Obamacare mandate? Take a gander at the latest news from The Commonwealth of Massachusetts Health Insurance Connector Authority's epic clusterfark.


    The state's health insurance connector ? the highly touted agency that aims to bring cheap medical care to the masses ? has turned into a legal pit bull by aggressively going after a growing number of Bay Staters who say they can't afford mandated insurance ? or the penalties imposed for not having it.

    The Commonwealth Health Insurance Connector Authority is cracking down on more than 3,000 residents who are fighting state fines, and has even hired a private law firm to force the health insurance scofflaws to pay penalties of up to $2,000 a year.

    All told, more than 7,700 people have appealed state fines for not having health insurance, according to connector spokesman Richard Powers. The agency has hired several private attorneys at $50 an hour to hear many of the appeals, and some 3,150 of them have been denied ? and the losers told to pay up.

    The connector has also hired the Hub law firm Bowman & Penski ? at $125 an hour ? to defend itself against 13 lawsuits filed by fed-up taxpayers who insist they can't afford state required insurance premiums or the escalating fines.

    I can't wait for the Federal Bureau of Suing Lazy Fucks Who Won't Pay $2 Grand to Buy Health Insurance Even Though Their IRS Return Says They Can Afford It. Now hiring!

    1. so you're saying the dem party pushed through a federal law that we now see will be a huge boon for Lawyers to both attack and defend.


  5. It's already been decided in the SCOTUS that the states don't have to implement any federal mandate.

    "We held in New York that Congress cannot compel the states to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the state's officers directly. The federal government may neither issue directives requiring the states to address particular problems, nor command the states' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty." [Printz v. US, USC, 117 (1997)]


    1. ah, dual sovereignty. two masters for you, son.

    2. I think you are misreading the holding there. They can't make the states pass laws or impress state actors to enforce federal laws, but they can pass federal laws that all states must follow.

      1. It's not talking about laws it's talking about federal regulatory programs. Things like Medicaid and No Child Left Behind.

  6. That's actually a really big problem with health insurance is that it's so easy for insurarers to seprerate out high risk people. But if you make them take the high risk people, then you end up with mainly high risk people on the insurance.

    This results in the indivudual mandate.

    You really can't have one without the other.

    Liberals think single payer is the solution, but that just subsitutues one form of rationing for another (either that, or bankruptcy, which is the path Medicare is on now).

    If only we lived in a world with unlimited resources, where everyone had a "right" to all types of goodies (paid for by someone else of course).

    Instead we live in a world with limited resources that's motivated by self interest.

    That means some people aren't going to get all the healthcare they want.

    So the choice is either to have the government make that decision, or people (constrainted by their own resources).

    1. You can let them charge the high risk people more. Say, an amount that exceeds the expected cost of treating that person.

      1. By "expected" I am speaking in terms of statistical expectation - the integral over time of probability times cost, discounted further in the future.

        Just in case Chad shows up and doesn't understand what "expectation" means, again.

  7. "States shouldn't be forced by the federal government to adopt a one-size-fits all health care plan. Each state's health care needs are different,"

    Hey Brown! Change both uses of the word "states" to "individuals" and I'm with ya.

  8. Republicans are heartless and cruel and un-American!

  9. "This is why I've been critical of Republican suggestions that we only repeal the mandate (which is widely disliked blatanly un-fucking-constitutional) and not the insurance regulations (which are widely liked blatantly un-fucking-constitutional)."

    1. I don't think it's obvious that the insurance regulations are unconstitutional.

      The problem is that they effectively make it illegal to sell actual health insurance.

      In the future, people will go to vegas and place bets on their getting cancer in the next year or five, to get around this fact.

      1. And the enumerated power is where, exactly? Oh, right.. the commerce clause, the same one that is used to justify forcing a trade of health insurance and money.

  10. Here's Ezra Klein calling a federalist approach to health care reform "extreme." Of course, that was when a knuckledragging Republican was leading the charge. Now liberals think they can make hay of this whole federalism thingee, so Klein does what every good partisan masquerading as an intellectual does: flip flop.

    1. And here's Klein now.

  11. Repeal everything, then get rid of the dumb bastard.


  12. On your marks, get set, race to the bottom!

  13. It's interesting to me how much of this stuff comes down to the "negative vs. affirmative rights" debate. Libertarians tend to see health care being claimed as a right as absurd because they don't believe in affirmative or positive rights, liberals do believe in positive rights so they wonder wtf the fuss is about.

    When this debate comes up it does'nt take long for someone to say "there can be no positive rights because it would conflict with other people's rights." I don't find that helpful because it simply assumes what is being debated-for libertarians a chief negative right is not to be compelled to provide positive aid to anyone, but that is the every type of thing being debated! So of course it doesn't convince a liberal to tell them positive rights are no good because they, you know, involve positive rights...

    Additionally, how does a minarchist make this argument? If you are going to have a police force paid for via taxes which protects even merely negative rights, then you are going to compel people to protect other people's "purely negative" rights (now they don't seem so purely negative, do they?). If you say the police will work for a fee then you are in the position of saying that those who can afford their rights being protected will have them protected. Forgive us if we are less than enthused with such an answer...

    1. "that is the very type of thing..." Stupid lazy no-preview...

      1. Where, exactly, are "positive rights" enumerated in that dusty old quaint relic known as the Constitution?

        1. You simple-minded Tenth Amendment worshipers never cease to amaze.

          1. Externalities!!!

            1. ARF Ron Pual's cock ARF fucking right-wingers ARF/b>

              1. I'm perfectly okay with forcing states to force people to bow to force. It's what makes America great.

                But you Christ-fags wouldn't get that.

    2. You're just glossing over WHY positive rights don't work. It isn't axiomatic.

      To me, rights are a kind of conflict resolution mechanism. You settle a dispute over resources by giving one person the "right" and not the other.

      So, just to start with, can we agree that two people cannot simultaneously have the "right" to the same resource?

      I say this because if they did then something ELSE would have to resolve the conflict. You'd have to invent another rights system, and we'd be back to square one.

      Positive rights don't work because they entitle multiple people to use of the same resource. Not just because they conflict with other people's negative rights.

      If you say that everyone has a "right" to healthcare, a limited resources, you are inevitably going to create more conflicts than you resolve. What happens when two people both need a CAT scan, but you only have time to give it to one? If both people have a "right" to a CAT scan, then you're going to have to violate someone's rights. Or rather you are going to have to admit that neither one actually HAS a prior right to it, but that some other administrative process must determine who gets the "right".

      Which creates other problems ... now you have a system where rights are not universal and equally applied, or derived from first principles, but are subject to some sort of political social determination. "All animals are equal, but ..."

      1. Well put.

        In addition, you end up multiplying the strange situation of "rights" that only exist when society is rich and can afford it, which doesn't make sense from a moral standpoint.

        It's analogous to the view (held by some) that the right to an abortion depends on whether or not pre-natal care is sufficiently advanced to make it reasonably cheap for your unborn child to be sustained outside your womb.

      2. I think the answer here, and to John's point about rich nations, is that the right doesn't change but the ability to provide for it may at any given time be imperfect. That doesn't imply one should not try or that one is not morally compelled to try.

        Again, in protecting people's negative rights we would need a force that can't be everywhere at once and must pick and choose because of limited resources.

        1. Well, we have a court system that backs up the failure of the police to stop all rights violations.

          Once a violation does occur, you can seek redress for it.

          But what are you going to do when someone's family seeks redress because you didn't do everything in your power to ensure that their grandfather got put on a heart and lung machine after his coronary?

    3. Ayn Rand resolved this whole "dilemma" with one question.

      liberals do believe in positive rights

      At whose fucking expense?

    4. Nothing can be a right which would require another person to provide it. No one has a 'right' to another person's property, time, education, etc., which is why positive rights cannot exist. When you claim a positive right, you claim ownership over another person; if you cannot provide whatever this positive 'right' entitles you to, someone else must provide it for you. You are enslaving your fellow man.

  14. Police protect you from criminal incidents and such,

    Err, no, they don't. Police investigate and arrest suspected criminals. As a second-order effect, this reduces the number of criminal incidents (in theory).

    But they don't protect you from criminal activity, except in those vanishingly rare instances where someone* tries to commit a crime in close proximity to a cop.

    *Someone who's not a cop, that is.

  15. Again, in protecting people's negative rights we would need a force that can't be everywhere at once and must pick and choose because of limited resources.

    Since people's negative rights are largely the right not to be interfered with by the State, this doesn't follow, at all. You seem to be arguing that the only way to prevent the State from interfering with people is to have an omnipresent, omnipotent State. Which is kind of backwards.

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