President Obama announced Monday morning that he supports a plan to allow states to essentially opt out of much of the health care law in 2014, so long as they come up with state-based plans that match the law in terms of extending coverage and benefits and don't add to the deficit.
The measure, if passed by Congress, would move the potential opt-out date up from 2017 to 2014 -- the same year that many of the key provisions go into effect, including the individual mandate, which has served as the basis for constitutional challenges to the law in court.
The president's announcement raised questions about whether the White House was trying to find a way around the legal challenges to the law by changing it to make them moot. Two district court judges have thus far found the law to be unconstitutional, while three have upheld it; the matter is likely headed to the Supreme Court.
Gregory Magarian, a constitutional law expert and law professor at Washington University in St. Louis, said he didn't think the move would make a difference when it came to constitutional challenges. Magarian believes the law is constitutional.
"The constitutional challenges depend on the idea that the Affordable Care Act violates states' prerogatives under the 10th Amendment," he told Hotsheet. "Following that logic, the opt-out simply gives states the option of capitulating to federal policy or submitting to an intrusive federal bureaucracy that, as you noted, holds the states to standards of the federal law. The challengers might even argue that the terms of the opt-out amount to 'commandeering' of state governments, which the Supreme Court recognizes as a different sort of 10th Amendment violation, because - in the challengers' view - the alternative to the opt-out is unconstitutional."
In a briefing with reporters, two senior administration officials said the change was not designed to address court challenges to the law. They also said they did not know how many states will seek a waiver - but they pointed to Oregon as well as Massachusetts, a state that already has a similar health care law in place.
Relatively liberal states, as the Associated Press notes, might use the opt-out option to implement more comprehensive, Medicare-like health care programs, while relatively conservative ones might propose an alternative that does not include the individual mandate. (That might be tough to actually pull off, however, since to receive the waiver, states must match the Affordable Care Act in terms of comprehensiveness, cost and availability of coverage. Democrats have long argued that the individual mandate is necessary to achieve such goals.)
The measure does put Republicans in a difficult position in terms of how to vote. On the one hand, they have railed against the individual mandate as an encroachment of liberty - and this proposal allows states, at least in theory, to avoid it. That would seem to be a reason to vote for the change. On the other hand, the price for opting out is so high that conservatives could see the proposal as an attempt to force an overreaching health care plan onto states by any means possible. And they certainly don't want to change the law in a way that could keep it from being overturned by the Supreme Court.