WASHINGTON -- With the debate over the Affordable Care Act law morphing from a constitutional matter before the Supreme Court to an implementation matter before state houses, President Barack Obama and allied Democrats are refiguring their sales pitch.
In response to criticisms that the law hamstrings governors, defenders of the president's health care law will be championing a states-rights amendment that already enjoys Republican support.
Under current law, states are allowed to opt out of various requirements of the Affordable Care Act by 2017, provided that they meet minimal standards for coverage. The Empowering States to Innovate Act would move that date to 2014.
For the Obama White House, the amendment has a number of politically appealing aspects. The most obvious is that it provides an avenue to the type of federalist approach that the Republican Party, and its standard-bearer Mitt Romney, has argued should have been adopted in the first place. More bluntly, the co-sponsor of the amendment, along with Sen. Ron Wyden (D-Ore.), is Sen. Scott Brown, a Massachusetts Republican who happens to share a senior adviser with Romney.
When top Obama administration officials were asked how they would go about selling the law in the immediate aftermath of the court's ruling, one of the three provisions they cited was the opt-out amendment. It was equally telling that the president made a point of emphasizing the idea in his post-SCOTUS remarks.
"Each state will take the lead in designing their own menu of options, and if states can come up with even better ways of covering more people at the same quality and cost, this law allows them to do that, too," Obama said. "And I’ve asked Congress to help speed up that process, and give states this flexibility in year one."
Perhaps the most obvious signal that the White House sees the amendment as a campaign instrument came in February 2011, when the president declared -- in a bit of prescience with respect to the GOP primary -- that he "agree[d] with Mitt Romney" that states should be given "the power to determine their own health care solutions."
But as the Obama administration moves to embrace the Empowering States to Innovate Act, Republicans have gone silent. The Huffington Post reached out on multiple occasions to both Brown's Senate office and his re-election campaign to confirm that he still supports the amendment; to the Romney campaign to ask if the candidate backed the provision; and to the office of Senate Minority Leader Mitch McConnell (R-Ky.), asking if he supported it. None of the requests for comment were returned.
The silence may be owed to political caution more than anything else. Even after the Supreme Court affirmed the constitutionality of the Affordable Care Act, the de-facto position of the GOP has been to act as if the law will never come to be. Romney has pledged to repeal it upon taking office. And several Republican governors have said, in recent days, that they won't implement several of its components.
Under less charged circumstances, these governors and Romney may be more inclined to embrace the Wyden-Brown amendment. But to do so would be an implicit recognition that the Affordable Care Act will exist in the foreseeable future.
"I think it is very powerful," Wyden said of his proposal. "I think you start with a few propositions. It is a big and diverse country. There will be differences of opinions with respect to health care reform. This gives all side the opportunity to show their approach is attractive for their region to the country. But there is a bar, and that is you have to meet the coverage requirements of the Affordable Care Act."
"The White House has already endorsed it," Wyden added. "There are plenty of others, including conservative folks who would like to go with some of their ideas. The concept is baked into the law."
So far, the most notable example of a state gearing up to take advantage of the opt-out amendment is Vermont, which is set to adopt a single-payer, state-wide health care system. Other states may soon follow. But under the Wyden-Brown amendment, they would have to meet certain criteria.
A state must first pass a law to provide health insurance to its citizens. The Secretary of Health and Human Services and the Secretary of the Treasury must then review the legislation and determine whether it provides individuals with coverage as comprehensive and affordable as the Affordable Care Act does. They also must make sure it wouldn't increase the federal deficit.
Should they meet that criteria, the Affordable Care Act provisions states can avoid include the individual mandate, the health insurance exchanges and certain coverage rules. According to Wydens' office, a state could still collect federal money under the ACA for, among other things, "the subsidies for premiums, the subsidies for co-pays, and the tax credits for small businesses," even after opting out for their own distinct reforms.
The money earmarked for Medicaid expansion -- which the Supreme Court ruled states could decline and which several Republican governors have signaled they will reject -- is unrelated to the amendment.
Democrats allied with the White House see the Wyden-Brown amendment as a helpful way to disarm criticisms that the Affordable Care Act is overly burdensome on those very same Republican governors. But the expectation remains that they will end up implementing the law rather than opting out. As The Huffington Post's Jeff Young reported, the lobbying pressure for them to do so will be severe. The political realities will also change over time, as some reforms are implemented, public opinions shift and elections take place.
"We have heard from a number of states that once the Supreme Court rules they would start moving to implement the bill," said Neera Tanden, president of the Center for American Progress, in an interview after the decision came down.
"They face a stark choice: if they don’t implement the exchanges, they face a federal exchange," she said. "So I think the effect of the litigation was to call into question the whole apparatus of the law, to make people confused by it. I think you will see some more moderate Republican governors start to implement the law now."