Sen. Ron Wyden (D-Ore.) has a message for all the attorneys general and Republican lawmakers who are threatening lawsuits and claiming that an individual mandate for insurance coverage is unconstitutional: You don't have to abide by it -- just set up your own plan.
The Oregon Democrat isn't inviting opponents to defy the newly-enacted health care law. Instead, he's pointing out a provision in the bill that makes moot the argument over the legality of the individual mandate.
Speaking to the Huffington Post on Tuesday, Wyden discussed -- for one of the first times in public -- legislative language he authored which "allows a state to go out and do its own bill, including having no individual mandate."
It's called the "Empowering States to be Innovative" amendment. And it would, quite literally, give states the right to set up their own health care system -- with or without an individual mandate or, for that matter, with or without a public option -- provided that, as Wyden puts it, "they can meet the coverage requirements of the bill."
"Why don't you use the waiver provision to let you go set up your own plan?" the senator asked those who threaten health-care-related lawsuits. "Why would you just say you are going to sue everybody, when this bill gives you the authority and the legal counsel is on record as saying you can do it without an individual mandate?"
This is not accurate. You see, the problem is that the individual mandate starts in 2014, but states can’t get a waiver to try a different system, potentially one without an individual mandate, until 2017. So, there is nothing states can do to stop the individual mandate from being in effect for at least three years.
Whether you agree with an individual mandate or not, it is just wrong to say people shouldn’t complain because, at some point in the future, they might possibly have a way for states to opt out of it. If the state waiver started in 2014, Wyden’s argument would be perfectly valid, but as the law currently stands, his statement is pure baloney.
Wyden also seems to be glossing over the serious problem of system entrenchment. While it would be easy for a state to experiment with a new health care system in 2014 if they could get a waiver right away, trying to start a new system in 2017 would be much more difficult. The law requires them to put all the effort into setting up this exchange system. Expecting a state to start all over by uprooting this new system and putting up a whole different system after only three years is a huge hurdle.
Obviously, Wyden's provision wasn't meant to make it easy for states to opt out. But it does make it possible, and that's probably all it needs to do to meet any legal challenges.
As to motive? My guess is, they probably did it this way to hit their CBO targets.
If the Republicans were operating in good faith, it would be a lot simpler to consider reconciliation amendments like the one Jon suggests. Instead, they're doing what they do best: obstructing the process. No no no!