On Thursday, a series of liberal groups sent a letter to the nation’s insurance departments, asking them to effectively undermine President Trump’s October executive order on health care. In so doing, the Left suddenly rediscovered the virtues of federalism in setting an independent policy course from Washington, particularly when governed by an executive of the opposite party.
Unfortunately, however, because Congress has yet to repeal Obamacare’s federally imposed regulations—as I noted just yesterday—legislators in conservative states will have little such recourse to seek freedom from Obamacare unless and until Congress takes action.
Liberals Want to Thwart More Affordable Coverage
For instance, the Trump administration likely will revoke an Obama administration rule prohibiting short-term insurance policies—which need not comply with any of Obamacare’s statutory requirements—from offering plans of longer than 90 days in duration. In such a circumstance, the liberal groups want states to “act swiftly if the federal rulemaking allows these plans to last beyond a reasonable ‘short term’”—in other words, reimpose the 90-day limit on short-term plans, currently codified via federal regulations, on the state level.
The liberal groups also asked states to “consider ways to protect against potential harm from” other elements of the executive order, including association health plans (AHPs) and health reimbursement arrangements (HRAs): “If the proposed federal rules are weakened for short-term plans, AHPs, or HRAs, we urge state insurance regulators to take action to protect consumers in your states.”
In this case, as in most cases with liberal groups, “consumer protection” means protecting individuals from becoming consumers—preventing them from buying insurance plans that liberals do not approve of.
One-Way Federalism, In the Wrong Direction
As a supporter of the Tenth Amendment, while I might not agree with state actions designed to prevent the sale of more affordable insurance options, I respect the rights of states to take such measures. Likewise, if Congress repeals Obamacare’s mandate to purchase insurance, and states wish to reimpose such a requirement at the state level, they absolutely should have the ability to do so.
Unfortunately, however, Congress’ failure to repeal Obamacare’s regulations has created a one-way federalism ratchet. Liberal areas can re-impose Obamacare’s regime at the state level, by blocking the sale of more affordable insurance plans, or re-imposing a mandate to purchase insurance. But because Congress has left all of Obamacare’s federally set regulations in place, conservative states cannot de-impose Obamacare at the state level, to allow more affordable coverage that does not meet all of the law’s requirements.
Admittedly, by not thwarting Trump’s regulatory actions, conservative states can allow the sale of more affordable insurance products—for now. However, those executive actions have real limits when compared to statutory changes.
Moreover, another president could—and in the case of a Democratic president, almost certainly would—undo those actions, collapsing what little freedom the executive order might infuse into the market. Regardless, states will remain hostage to actions in Washington to determine control of their health insurance marketplaces.
This dynamic brings no small amount of irony: Liberal groups have suddenly discovered the benefits of federalism to “resist” a Trump administration initiative, even as Republican senators like Louisiana’s Bill Cassidy, by keeping the federally imposed pre-existing condition mandate in place, want to dictate to other states how their insurance markets should function.
At the risk of sounding like an apostate, liberals are on to something—not with respect to their policy recommendations, but to federalism as a means of achieving them. Perhaps one day, the party that purports to believe in the Tenth Amendment will follow suit, by getting rid of Obamacare’s federal regulations once and for all.
This post was originally published at The Federalist.