If President Obama’s re-election makes one thing emphatically clear, it ought to be that the Affordable Care Act a/k/a ObamaCare is here to stay. The odds that Republicans were going to be able to repeal the law were always pretty thin anyway given that even a President Romney would still have to have dealt with a Senate either controlled by the Democratic Party or with a Democratic minority large enough to invoke cloture to stop a repeal bill from making it’s way through the Senate. With President Obama re-elected and a larger Democratic majority in the Senate, though, there is simply no way the law is going to repealed. Any effort by House Republicans to do so would be as futile and pointless as the thirty-three times they did so during the 112th Congress, all of which went absolutely nowhere after leaving the House. Like it or not Republicans, the Affordable Care Act is here to stay.
Some Republicans, at least, seem to realize this. Consider Speaker John Boehner’s words yesterday:
House Speaker John Boehner made it official Thursday: Obamacare isn’t going anywhere.
In an interview with ABC News, Boehner seemed to suggest the election ended any efforts to wipe out the whole law. When “World News” anchor Diane Sawyer asked if there would be any more votes to repeal the law, Boehner said “the election changes that” and “Obamacare is the law of the land.”
He said, however, that some parts of the law should still be on the table when lawmakers start negotiating a deficit deal.
Here’s the video:
Boehner’s office later walked the statement back somewhat by saying that modifications to the law should still be on the table in any upcoming budget negotiations, but the underlying sentiment is clear. Boehner is no dummy, he’s been around Congress long enough to know that the the whole “Repeal Obamacare” meme is so ridiculously dead at this point that it isn’t even funny. Of course, that doesn’t mean he can simply say that out loud at the moment, hence the reason that his office walked the statement back so quickly. His original point is correct, though. The Supreme Court has upheld the Constitutionality of the law, so outside of some outstanding challenges to aspects of the law not dealt with by the Supreme Court in June, the legal avenue is foreclosed. Thanks to the results of Tuesday’s election, the political avenue is foreclosed from now until at least 2017, at which point the law will be in complete effect and full repeal will become more difficult.
Despite those facts, the battle against the PPACA is apparently still going on:
Two states with Republican governors — Virginia and Kansas — announced they won’t build health care exchanges in their states to implement the law. Instead, they’ll let the feds set up an exchange in their states — at least when they go live in 2014.
And even the hint that Republican governors might cooperate in some ways from the law proved how sensitive the subject still is.
On Thursday afternoon, the Republican Governors Association canceled a call in which state officials were supposed to assess where they stood on exchange plans and how they’ll approach the Nov. 16 deadline to submit a blueprint application. The call was scheduled, but then canceled after POLITICO reported it was happening.
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The best hopes of resistance, for now, are coming from the states — where some governors are saying they may just not move ahead to set up the health exchanges. But even then, all that happens is that the feds would set up the exchanges for them.
Although Virginia showed interest in a state-based exchange as recently as this summer, Gov. Bob McDonnell and Attorney General Ken Cuccinelli said Wednesday they didn’t have enough federal guidance to make a decision ahead of the Nov. 16 exchange deadline.
“We’re going to pass through that [blueprint] deadline,” Cuccinelli said on Fox Business on Wednesday, but he left the door open for the state legislature to reopen the exchange issue next year.
And Kansas Gov. Sam Brownback, who last year sent back a $31.5 million exchange grant, on Thursday afternoon objected to the cost of setting up a state-based exchange.
“My administration will not partner with the federal government to create a state-federal partnership insurance exchange because we will not benefit from it and implementing it could cost Kansas taxpayers millions of dollars,” Brownback said in a statement, adding that he welcomed legislative debate on his decision next year.
It’s not just Republicans who are opting out of the exchanges. In Missouri, Democratic Gov. Jay Nixon — fresh off reelection — said a state-based exchange wasn’t realistic for 2014, the Kansas City Star reported. Voters in his state just approved a ballot measure blocking him from using an executive order to launch an exchange.
The exchange issue is actually an important one because there is a fairly strong argument that the PPACA, by its own language, only permits the Federal Government to provide subsidies to people who are participating in state-based exchanges. If a state fails to establish an exchange, then the law authorizes the Federal Government to step in and set up its own exchange for citizens of that state to use. However, there is no provision in the law that permits subsidies to be paid to people participating in Federal Exchanges. This means that the Administration would be faced with a serious problem if a large enough number of states failed to set up exchanges in that they would be unable to subsidize the people participating in those exchanges and there’s very little chance that a Republican House would agree to modify the law to authorize subsidies for Federal Exchanges, or otherwise fund such subsidies through a separate appropriation.
Beyond this, though, there really isn’t a whole heck of a lot that Congress or the Courts can do about the law. There are Court challenges pending to the Employer Mandate, the part of the PPACA that requires employees with 50 or more employees to provide health insurance to their employees, but I suspect that these challenges will see the same fate as the challenges to the Individual Mandate. Legislatively, the options are minimal at best. Absent the possibility, not remote, that the whole system may collapse due to the untenability of the exchanges, something that may not happen for years after President Obama has left office, the PPACA is, for the moment, here to stay. The GOP needs to recognize that fact.
