Wisconsin Gov. Scott Walker met with reporters today, and basically admitted that if the ACA disappears, states like his could step up and make sure people with pre-existing conditions aren't excluded from the insurance market. A pander, yes, but it opens an exquisite Pandora's box.
In response to the obvious followup -- how could you do that without a mandate? -- he sort of waved his hands, but crucially he admitted it's something individual states could and might implement themselves. This wasn't Jerry Brown talking, it was Scott Walker. More than just about any GOP governor, he's the face of the anti-Obama insurgency. And what he's suggesting is that many states (either out of desire or political necessity) will implement some of the key features of 'Obamacare' even if it's struck down or repealed at the federal level.
This is no small thing. Think about the three biggest potential Supreme Court outcomes.
1). The court throws out the mandate alone. That's a big problem for insurance companies and other providers, and the conventional wisdom has been that they'd raise hell on Capitol Hill until the mandate was replaced by something clearly constitutional. But if dozens of states start implementing mandates of their own, the problem goes away without Congress stepping in at all.
2). The court throws out the mandate and the coverage guarantees. In the absence of state action, this would turn the health care law into a shell of what it was supposed to be -- into a system that provides subsidies to the pool of people healthy enough to qualify for health insurance. Not nothing, but no great shakes. However, the subsidies would still flow from the federal government to the state exchanges, and if the states start passing mandates along with guaranteed issue and cost-sharing provisions (so that sick people could afford the insurance) then, again, we'd end up asymptotically approaching 'Obamacare' anyhow.
3). The court throws the whole thing out. Would the vision behind the health care law re-emerge organically at the state level if the federal government has to completely hit the brakes? Very hard to say. Any number of things could happen. But the same basic logic applies. If, Ã la Walker, states start doing away with pre-existing conditions discrimination, then state-level 'Obamacare' emerges almost elegantly as the logical solution. Many states will already be on their way to erecting insurance exchanges. Romney's own transition leader thinks all states should set these up themselves, ACA or no. Combine them with guaranteed issue and a mandate, and you're almost back to ACA-by-patchwork -- or Mitt Romney's old dream of Romneycare as a model for health care reform.
I'm not predicting this is what would happen. But Walker hinted at the endgame almost by accident. He may regret saying it, and may walk it back, but it's still significant and revealing. Significant because it suggests 'Obamacare' has already injected itself into our health care system's DNA. Revealing because it gives the lie to the idea that conservatives have some huge principled objection to individual mandates. Many do not. Additionally, for most conservatives, the vicious opposition to the health care law has never really been about an esoteric Tenth Amendment objection. It's supposedly been about freedom in the abstract. Put that all together and it's hard not to conclude that the past three years of high-dudgeon about 'Obamacare' has been sound and fury signifying nothing.