As Tony Carrk has noted, Virginia’s Attorney General Ken Cuccinelli went to court today to defend his health care lawsuit against the government’s motion to dismiss. Virginia Solicitor General Duncan Getchell argued on the state’s behalf and he insisted that “No post-modernist playing with language can turn inactivity into economy activity affecting interstate commerce.” Cuccinelli appeared before the cameras after to make that argument in more colorful terms:

“If the government prevails in this suit, and Congress can force Americans to buy private health insurance in the name of regulating commerce, then Congress will have been granted a virtually unlimited power of ordering you to buy anything,” said Cuccinelli, a Republican, who raised the spectre of “Congress forcing you to buy Chevrolets or any other private product it wants” as part of his reasoning for bringing suit.

“That would amount to the end of more than 220 years of federalism,” said Cuccinelli, who told reporters on a conference call Thursday afternoon that the suit is not “about health care.” “It is about liberty. It is about whether we’ll lose our liberty and allow the federal government to dictate to us what we must buy in the name of its policy goals,” Cuccinelli said.

If there is one thing we learned from Elena Kagan’s rather dry confirmation hearings it’s that the Supreme Court has determined that there are limits to what Congress can do under the commerce clause. It cannot regulate non economic activity. As she put it: “the current state of the law is to grant broad deference to Congress in this area, to assume that Congress knows what’s necessary in terms of the regulation of the country’s economy, but to have some limits.” “And the limits are the ones that were set forth in the cases that you mentioned, the Lopez case and the Morrison case, which are where the activity that’s being regulated is not itself economic in nature, and is activity that’s traditionally been regulated by the states.”

The decision not to purchase insurance is inherently economic. We all have bodies and they all get old and sick. If we go uninsured and then suddenly fall ill, the cost of care is shifted to other payers. In 2008, the government spent some $43 billion providing uncompensated care to uninsured individuals. In that sense, even the failure to buy a product constitutes an “economic activity.”

Cuccinelli said he expected the Court to rule on whether Virginia’s case should be dismissed in 30 days.

Starting today, Americans who have been uninsured for more than six months and denied coverage on the individual market will be able enlist in a temporary high-risk pool program the government is calling, Pre-existing Condition Insurance Plan (PCIP). Each PCIP will be run by the state or the federal government and will have to keep their premiums at “standard rates,” limit on out-of-pocket medical costs to $5,950 a year for an individual, and maintain an actuarial value of at least 65%. Plans will also be prohibited from varying premiums on the basis of age by a factor greater than 4 to 1.

State and federal governments will have just $5 billion to spend on the program and many expect that the limited resources and the high cost of covering very sick applicants could lead to steep premiums or force states to limit eligibility. Iowa, for instance — which will receive $35 million of the $5 billion federal pot — predicts that it will only have enough dollars to cover 975 sick residents and the federal government says that premiums will vary nationwide:

Prices will vary by state and type of coverage from a low of $140 a month to as much as $900, said Richard Popper, deputy director of a new insurance office at the federal Health and Human Services department. Officials provided details of the plan, which starts enrolling people Thursday.

The price range is so wide because premiums will be keyed to standard individual health insurance rates in each state, which can differ dramatically because of medical costs and the scope of coverage. Independent experts estimate premiums will average around $400 to $600 a month. Younger people will pay less. “There are going to be meaningful premiums that are going to be required to stay in this plan … in the hundreds of dollars,” said Popper, with the Office of Consumer Information and Insurance Oversight.

The pools are an interim measure that will go away after the exchanges become operational in 2014, but if Democrats want to live up to the name of the health care law, they will have to figure out a way to appropriate more funds for the program. The Congressional Budget Office has concluded that the $5 billion will last for approximately two years and many states are worried what happens once that money runs out.

Nobody is protesting louder than the GOP. Last week, 28 Senate Republicans wrote to Health and Human Services Secretary Kathleen Sebelius arguing that the CBO findings are proof that the pools “will fail to provide the assistance promised by supporters of the new law” and this week the office of Rep. Dave Camp (R-MI) put out an entire release complaining about the lack of funds.

Their point is certainly well taken, but given their opposition to spending money on health reform and commitment to repealing the entire law, it’s hard to take seriously. After spending the last year and a half claiming that the government was spending too much money to reform health care and that it should put all of it back, the GOP is now accusing Democrats of not pumping enough money into the system. Should the Democrats move to add more money into into high risk pools, however, the Republicans will probably revert to their original criticism.

The Department of Heath and Human Services unveiled its long awaited web portal this morning, healthcare.gov. The snazzy website allows consumers to comparison shop between different coverage options, including private insurance plans, high risk pools, CHIP and Medicaid. “For the first time ever in the history of this country, American consumers can see all their health care options in one place,” Kathleen Sebelius said a press conference this afternoon. The site has information on over 1,000 private insurance carriers from the private market place and supports over 3 billion potential personal scenarios.

And as Chief Technology Officer Todd Park demonstrates, it’s also very friendly:

By October 2010 the site will offer price estimates of different plans, medical-loss ratio information (percentage of your premium spent on administrative costs) and new details about prevention and care quality. “It’s a site we hope to co-author with the American people,” Todd Park said, stressing that the site “didn’t fee like a government website.” And while it certainly doesn’t look like a government site, the fact that it is, I think, is significant. Given the common perception of government inefficiency and waste, it’s telling that HHS was able to design such a user friendly and aesthetically pleasing website — in just 90 days. It speaks well of the department’s implementation strategy and sets up a fairly high bar and sound precedent for moving forward with reform.

What’s unclear is how the site will interact with the new exchanges once they become operational in 2014. Asked if by New York Times’ Robert Pear if individuals will be able to submit applications for insurance directly though the website, Sebelius stressed that the site would remain purely informational. “No, I don’t think we ever anticipate or want to be the insurance broker for the country,” she said. “This is really a consumer tool and a transparency tool to help people do some comparative shopping and information.” “What we want to do is give a non marketing tool to let people access the market a little more easily.”

State and regional exchanges will presumably have to establish their own websites, whether or not they’ll use healthcare.gov as a model and how the site will present the exchange options, is unknown.

Our guest blogger is Tony Carrk, Policy Director for Progressive Media.

Today, oral arguments begin in the lawsuit that Virginia Attorney General Ken Cuccinelli filed challenging a core provision of the Affordable Care Act. If successful, this political strategy would have disastrous policy consequences resulting in higher costs and unaffordable coverage for those who need it most.

Attorney General Cuccinelli is seeking to strike down the provision of the Affordable Care Act that requires people to purchase insurance. This core provision — the individual mandate — keeps health care costs down by spreading the risk among the healthy and the sick. If removed, healthier people will wait to purchase insurance when they need it. Insurance companies will still be banned from denying people coverage based on pre-existing conditions, but because the insurance pool will be sicker, costs will skyrocket. This is referred to as the “death spiral” of insurance. In effect, Cuccinelli’s lawsuit makes insurance more expensive for those who need it most and forces some to drop their coverage all together. For this reason, numerous disease and disability advocacy organizations oppose the lawsuit.

Cuccinelli’s lawsuit is one of several Republican efforts at the state and federal level seeking to undermine the Affordable Care Act. Attorneys general and governors in 20 other states, all but one of whom are Republican, filed a separate lawsuit in Florida challenging some of the law’s provisions. Several states have placed ballot measures that will go before voters this fall repealing parts of the law. At the federal level, Rep. Camp introduced a motion to recommit that would have taken steps to repeal a portion of the Affordable Care Act. The motion failed by a vote of 187 to 230. And just yesterday, House Minority Leader John Boehner and Minority Whip Eric Cantor renewed Republicans’ efforts to bring repeal bills to the House floor after they appeared to have stalled.

Despite Republican statements to the contrary it is hard not to view these repeal efforts as nothing more than a political ploy which serves to deny people access to affordable health care. For example:

Few lawmakers believe the repeal effort is viable.

Within the first two minutes of his recent webcast town hall meeting meant to educate people on the Virginia lawsuit, Ken Cuccinelli asked people to donate to his campaign.

Since becoming Attorney General, Ken Cuccinelli has been courting the business community, a key constituency “essential to making policy, not to mention political careers.” Some say Cuccinelli is planning to run for governor in 2013.

Republicans are putting measure to repeal parts of the Affordable Care Act on the ballot as a way to boost conservative turnout in November.

New Jersey Governor Chris Christie is getting pressured to join the Florida lawsuit. The vice president of government relations at the conservative Heritage Foundation said Christie was “going to have to explain why he has stood out among his colleagues in his own party by not doing something they’ve all done.”

Instead of pursuing a strategy that will increase costs for those who need health coverage the most to score political points, a better strategy would be to help make the law work as best as possible for the American people. Igor Volsky‘s point on this matter is worth repeating: “If the GOP continues to press ahead with repeal, they might slow down the implementation process, but they’ll also run the risk of fading into historical irrelevancy. Who remembers the legislators who led the fight against Social Security or Medicare and better yet, who celebrates them?”