Silver Bullet: Can Scott Brown And Ron Wyden Save Health Care Reform?


A new bipartisan proposal that would allow innovative states to basically drop out of the health care law could help ease conservative opposition to the plan, even as the number of Republicans who have joined various lawsuits challenging the constitutionality of the individual mandate has swelled in recent months.

New legislation, introduced last week by Sens. Scott Brown (R-MA) and Ron Wyden (D-OR) would make a simple tweak to the law: It would allow the states to implement their own health care systems, and thus be exempt from most of the requirements of the Affordable Care Act. The catch: Those programs would have to cover, with decent insurance, at least as many people as the health care law does, but without adding to the deficit.

The law technically already provides this exception — but as currently written, states can only begin opting out in 2017. This new Wyden/Brown proposal would kick that date forward to 2014.Their plan has been praised widely, though not unanimously, by both liberals and conservatives. And sources on Capitol Hill say, if enacted, they hope it would moot the health care reform lawsuits by providing states a way around the federal insurance mandate.

It’s not clear whether it would defuse those suits, though.

“I don’t think it does,” says Timothy Jost, a law professor at Washington and Lee University who’s been watching the lawsuits closely. “The basic claim of the state lawsuits is that the federal government doesn’t have any authority to impose an individual mandate at all, and therefore allowing some states to opt out of the individual mandate doesn’t solve that problem.”

“The argument is that Congress has no power to do this whatsoever,” Jost adds, noting that he disagrees with the plaintiffs’ position.

CMS Administrator Don Berwick has reacted favorably to the proposal at a Senate Finance Committee hearing last week. And it certainly would provide the administration with rhetorical cover against the opponents of the mandate.

But very few states currently have the infrastructure in place to successfully opt out (two of the exceptions are Brown’s Massachusetts and Wyden’s Oregon). That would leave the vast majority of Americans vulnerable to the mandate, and, according to Jost, that’s why this might not be the legal silver bullet it supporters hope it would be.

Thirty Republican Senators have signed on to an amicus brief in support of a Florida lawsuit challenging the constitutionality of the mandate. Brown is not one of the 30.

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