Posted by
Defend America on Friday, March 26, 2010 6:22:57 AM
Via the New Ledger:
The Wyden language — found in the bill here (side note: I actually think some of this language originates from a Maria Cantwell amendment in the Finance Committee,
and called Wyden’s office to confirm, but they haven’t gotten back to
me yet) — provides, as he says, that “if a state can demonstrate that
they can meet the criteria — particularly on cost containment,
improving the delivery system,” they can get a waiver from the
Department of Health and Human Services. It would be up to Secretary
Sebelius if this was in force today to determine what criteria must be
met.
I checked with my colleague at Heartland, senior legal fellow
Maureen Martin, about this. She says that “Senators can say whatever
they want about what statutes mean. Whatever they say is irrelevant. In
the end, the courts will decide what statutes mean. Whatever Congress
or the President say about the meaning of statutes is totally
irrelevant. Courts look at the exact language of statutes and decide
what they mean. So intent of Congress is irrelevant. It matters only
what the statutes say and how that is interpreted. I’m not sure this
point is well understood by the public.”
There are of course a number of
questions to be raised here about standing, but also about whether the
waiver is adequate protection if it is only possible for a five year
gap, and subject to the discretion of the HHS Secretary. My colleague
John Graham at the Pacific Research Institute points out that “applying
for a waiver” is not the same as “opting out” — he presumes the HHS
Secretary would grant a waiver if a state imposed single-payer, such as
in California and some other states.
Yet even presuming states wanted to do something pro-market, they
would only be able to apply for these waivers starting in 2017, and the
waivers in question would have to meet standards for “cost containment”
and “improving the delivery system” — standards which can be very
fluid. As with any regulatory issue that shifts at the whim of the
party in power, this will almost certainly lead to more litigation as
to what all of these terms mean for the states in terms of tangible,
measurable standards.
Nor can states be made exempt from the tax increases for individuals
and employers, the cuts in Medicare, the newly expanded unfunded
liabilities in Medicaid, and a host of other aspects of this bill. Of
course states could set up their own programs to cover people, but that
would be a waiver almost no state would want to accept, given that they
can’t prohibit their taxpayer dollars from going to fund this reform
elsewhere.
That’s hardly a full opt out. What’s more, an exemption from the
individual and employer mandates really can’t take place at a state
level without raising a host of other legal issues. The whole point of
the health freedom act in Virginia is not that the state is acting in
its own defense, but that it requires the state to act as a legal
matter in the defense of an individual being compelled by the federal
government to purchase a product or suffer a fine.
http://newledger.com/2010/03/the-individual-mandate-can-states-opt-out/