Republicans have finally unveiled the “skinny” Obamacare repeal bill they plan to vote on this evening. Like everybody expected, it’s an atrocious bit of policy—a piece of legislation that, as many GOP senators have already admitted, would destabilize the insurance markets by killing off the individual mandate while leaving the Affordable Care Act’s other regulations in place.
Somewhat surprisingly, the bill also still aims to make it easier for states to dismantle Obamacare on their own—though just how much easier is a bit of an open question, which of course won’t be resolved because Senate procedure is now a farce and Republicans are voting on this thing tonight.
As you may recall, the original Better Care Reconciliation Act made it extremely easy for conservative states to opt out of Obamacare’s rules and regulations by expanding the so-called 1332 “state innovation waivers” contained in the law. This provision was designed to let states experiment with alternative health care systems—like, say, single-payer—so long as officials could show that whatever setup they came up with would cover as many people as comprehensively as Obamacare, and without raising the federal deficit. The Republican bill would have nixed most those conditions, save the deficit bit, forcing the secretary of health and human services to approve pretty much any waiver request that came his way. Worse yet, once waivers were in place, the federal government would not be allowed to revoke it, no matter how states mismanaged their funding.
As Michigan Law Professor Nicholas Bagley wrote back in June, “If state officials blow the Obamacare money on cocaine and hookers, there’s apparently nothing the federal government can do about it.”
Earlier on Thursday, however, it seemed like those waivers-on-steroids might have be removed from the GOP’s bill. The Senate parliamentarian ruled that they were not eligible for a vote under the reconciliation process GOP leaders are relying on to pass their bill, and so would need 60 votes to break a filibuster.
But it turns out a somewhat-less-expansive version of the waivers made it into the skinny bill after all. To get them, states will still have to show that their proposals will cover as many people as thoroughly as Obamacare—those guardrails have been left in place. But once a waiver is approved, they can’t be canceled for eight years, which may effectively give states room to do whatever the heck they want. Or so writes Bagley late Thursday at The Incidental Economist: “So while the ACA’s guardrails are still in place, states can ignore them once a waiver has been granted. And there’s not a thing the federal government can do about it.”
Personally, I’m not so sure these waivers are really a free hall pass for states to revoke insurance from their residents. Presumably, if a state doesn’t abide by the terms of its own waiver, individuals who lost their coverage or premium subsidies could bring a lawsuit. (Likewise, if the administration tried to approve a waiver that clearly doesn’t meet all of Obamacare’s standards, someone would almost surely drag it into court). Would that work? I can’t say. There was some debate about it tonight on Twitter.
And that’s the problem (or, one of the problems, anyway). There hasn’t been nearly enough time to judge how this bill could affect health care for millions. And no matter what Mitch McConnell says, there’s a strong chance it could become law.