The most surprising part of Judge Roger Vinson’s ruling was his argument that the individual mandate was not severable from the health care law as a whole and must therefor bring down the entire Affordable Care Act. “In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably ‘evident,’ as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently,” Vinson writes.

But a closer read of his analysis reveals something peculiar. In fact, as Vinson himself admits in Footnote 27 (on pg. 65), he arrived at this conclusion by “borrow[ing] heavily from one of the amicus briefs filed in the case for it quite cogently and effectively sets forth the applicable standard and governing analysis of severability (doc. 123).” That brief was filed by the Family Research Council, which has been branded as a hate group by the Southern Poverty Law Center (SPLC).

“The Family Research Council (FRC) bills itself as ‘the leading voice for the family in our nation’s halls of power,’ but its real specialty is defaming gays and lesbians,” SPLC says. Indeed, so-called FRC “experts” (who most recently lobbied to preserve Don’t Ask, Don’t Tell) have argued that “gaining access to children” “has been a long-term goal of the homosexual movement” and claimed that “[o]ne of the primary goals of the homosexual rights movement is to abolish all age of consent laws and to eventually recognize pedophiles as the ‘prophets of a new sexual order.” FRC President Tony Perkins has even described pedophilia as a “homosexual problem.”

Here is how Vinson lifts FRC’s argument:

Vinson’s opinion:

Severability is a doctrine of judicial restraint, and the Supreme Court has applied and reaffirmed that doctrine just this past year: “‘Generally speaking, when confronting a constitutional flaw in a statute, [courts] try to limit the solution to the problem,’ severing any ‘problematic portions while leaving the remainder intact.’” [...]

The question of severability ultimately turns on the nature of the statute at issue. For example, if Congress intended a given statute to be viewed as a bundle of separate legislative enactment or a series of short laws, which for purposes of convenience and efficiency were arranged together in a single legislative scheme, it is presumed that any provision declared unconstitutional can be struck and severed without affecting the remainder of the statute. If, however, the statute is viewed as a carefully-balanced and clockwork-like statutory arrangement comprised of pieces that all work toward one primary legislative goal, and if that goal would be undermined if a central part of the legislation is found to be unconstitutional, then severability is not appropriate. As will be seen, the facts of this case lean heavily toward a finding that the Act is properly viewed as the latter, and not the former.

Family Research Council:

Severability is fundamentally a doctrine of judicial restraint. “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.” [...]

The question of severability is a judicial inquiry of two alternatives regarding the nature of a statute. One possibility is that Congress intended a given statute as a bundle of separate legislative embodiments, which for the sake of convenience, avoiding redundancy, and contextual application, are bundled together in a single legislative enactment. This makes a statute a series of short laws, every one of which is designed to stand alone, if needs be. The second possibility is that a given statute embodies a carefully-balanced legislative deal, in which Congress weighs competing policy priorities, and through negotiations and deliberation crafts a package codifying this delicate balance. Congress is thus not voting for separate and discrete provisions. Instead, Congress is voting on a package as a whole, any modification of which could result in the bill failing to achieve passage in Congress. As both Plaintiffs‟ briefs and the following argument shows, the Individual Mandate falls within the latter category, not the former.

Vinson’s conclusion is peculiar because Congress usually defers to Congress on questions of severability. In fact, even Judge Henry Hudson — the Virginia Judge who also found the individual mandate to be unconstitutional — left the whole of the law intact noting, “It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, without Section 1501…Therefore, this Court will hew closely to the time-honored rule to sever with circumspection, severing any ‘problematic portions while leaving the remainder intact.’”

As Chief Justice John Roberts noted in Free Enterprise Fund et al. v. Public Company Accounting Oversight Board, “Because ‘[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions,’ Champlin Refining Co. v. Corporation Comm’n of Okla. , 286 U. S. 210, 234 (1932) , the ‘normal rule’ is ‘that partial, rather than facial, invalidation is the required course.’”

Moments ago, U.S. District Judge Roger Vinson — a Reagan appointee on Northern District of Florida — struck down the entire Affordable Care Act, ruling that since the individual mandate is unconstitutional, the entire law is void. “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void,” he writes. “This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled ‘The Patient Protection and Affordable Care Act.’”

It’s the kind of over-reach that will do more to harm the Republican crusade against the law than help it. At one point, Vinson even embraces the entire Tea Party rationale against the Act and suggests that it could lead to total government domination:

If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only.

But the “activity” vs. “inactivity” distinction is hard to swallow since the actual text of the Constitution makes no mention of such a difference. The clause as written gives Congress the power to regulate economic decisions and there is a long line of Supreme Court cases that reinforce Congress’ broad power to enact laws that substantially affect prices, marketplaces, or other economic transactions. Health care comprises some 17 percent of the national economy and the failure to purchase health insurance — the very passivity that Vinson is referring to — is having a significant impact on national health care spending and growing costs.

But this too is an argument that he rejects. “If impact [of the uninsured] on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, the impact must be zero, and of no effect on interstate commerce.” Caring for the uninsured, in other words, is free and creates no cost shifts throughout the system.

That’s just not true (doctors and hospitals and treat the uninsured for free) and the argument unravels further when Vinson completely dismisses the Necessary and Proper Clause by arguing that it’s subservient to the Commerce Clause. That Clause, Vinson writes “is not really a separate inquiry, but rather is part and parcel of the Commerce Clause analysis as it augments that enumerated power by authorizing Congress ‘To make all Laws which shall be necessary and proper’ to regulate interstate commerce.”

This is the kind of distortion that really undermines the entire decision and sets Vinson apart as an activist who has decided that Congress has no power to regulate insurance companies, establish exchanges, extend drug discounts to seniors, and give small businesses tax credits to help purchase insurance are all unconstitutional. Conservatives should be outraged.

Today, Judge Roger Vinson is expected to become the second federal judge to strike down a portion of the Affordable Care Act (at least fourteen other judges have dismissed claims that the law is unconstitutional). While the right is certain to crow about this decision the minute it is handed down, the truth is that lower courts routinely strike down landmark legislation before that law is eventually upheld — and there is every reason to believe that the Supreme Court will do the same here:

• Minimum Wage: In United States v. Darby, the Supreme Court upheld a federal minimum wage and overruled  a prior decision striking down federal child labor laws. This decision reversed a district judge’s opinion declaring the minimum wage unconstitutional.
• Social Security: In Helvering v. Davis, the Supreme Court reversed a court of appeals decision declaring Social Security unconstitutional.
• Whites-Only Lunch Counters: In Katzenbach v. McClung, the Supreme Court upheld the federal ban on whites-only lunch counters — reversing a district court’s decision striking down this law.
• Voting Rights Act: In Katzenbach v. Morgan, the Supreme Court reversed a district court decision striking down a portion of the Voting Rights Act (the Court since stepped back from the reasoning applied in Morgan, but the Voting Rights Act remains good law).

Judge Vinson is going to do what he’s going to do today, but if he does strike down health reform, he will find himself in some pretty unpleasant company.

This afternoon, Don Berwick, the head of the Centers for Medicare and Medicaid Services (CMS), responded to Arizona Governor’s Jan Brewer’s (R) request to exempt 280,000 residents from the Medicaid rolls in order to balance the state budget. Under the Affordable Care Act, states that change their Medicaid eligibility rules also forgo federal funding for the program. The provision has placed many governors in a tough fiscal conundrum and has led some to seek leeway in the law.

Appearing at Family USA’s annual Health Action Conference, Berwick hinted that the agency would deny Brewer’s waiver request. He pledged to work with the states to help them meet their requirement, but urged governors like Brewer to take a longer view of reform:

BERWICK: I’m fully aware of the stress and distress that states are feeling…..What we can commit to is process –- which is we will be in dialogue. We will talk with the states, we will be talking with the governors. We are already in constant contact with them, we’re going to see state by state, community by community, the best kinds of solutions we possibly have, all the while protecting the beneficiary. […] We are here to protect the beneficiaries and to help the states do that.

I’ll say the real answer here has got to be a little longer run than what the states are thinking right now. If I were a governor of a state, I’d think short term also. But you know, we’ve got to work our way out of it. The Medicaid problem, the state problem in health care is the health are problem. It’s just more vivid because of the way state budgets are run. But it’s true for the whole system. A sustainable health care system for our country is a different health care system.

Watch it:

Thirty-three Republican governors have asked the federal government for a waiver to cut back on their existing Medicaid program without losing federal funding, and Arizona has previously jumped through some fairly small legislative hoops to avoid giving up this revenue stream. In March, the Arizona legislature eliminated funding for KidsCare, the state’s CHIP program, only to reestablish it months later in order to avoid losing billions of dollars in federal matching funds.

Last night, the White House announced that it was re-nominating Berwick, who was recess appointed last year after sparking controversy with Republicans.

Throughout the health care reform debate, Congressional Blue Dogs lobbied then-House Speaker Nancy Pelosi (D-CA) to adopt provisions that would lower health care spending and reduce the deficit, but curiously opposed the so-called robust public option. That measure reimbursed providers 5 to 10 percent above Medicare rates and would have reduced the deficit by as much as $110 billion over 10 years. In July of 2009, the fifty-member Blue Dog Coalition wrote a letter to Pelosi revealing “strong reservations” about an earlier House version of the health care bill. “After reviewing the draft tri-committee health care reform proposal, we believe it lacks a number of elements essential to preserving what works and fixing what is broken,” they wrote, noting:

A “Medicare-like” public option would negatively impact hospitals, doctors and patients…using Medicare’s below-market rates would seriously weaken the financial stability of our local hospitals and doctors.”

That argument was debunked repeatedly by MedPAC — which argued that Medicare rates are adequate and consistent with the efficient delivery of services — and relied heavily on insurance industry talking points. The industry feared that it would lose market share if forced to compete against a more efficient public plan. In March 2009, he industry’s chief lobbying arm, AHIP, provided lawmakers with this presentation, ‘What you should say when asked about the public option“:

You could end up not being able to see the doctor of your choice as the government plan would reimburse doctors so little for their services they stop accepting or dropping patients by the government plans.

And so, given all this, it is perhaps not surprising that today’s Politico Pulse reports that Erik Komendant, the policy director for the Blue Dog Coalition, has now accepted a job at AHIP as “VP for federal affairs.” After all, it’s like he was working for them already.

President Obama devoted just two paragraphs to defending the Affordable Care Act in his State of the Union Address, despite growing public opposition to the law and the GOP’s ongoing efforts to repeal, defund, or dismantle large parts of the measure. In fact, rather than empowering Congressional Democrats for the fight ahead by setting a powerful offensive tone that rebuked House Republicans for increasing taxes on small businesses during a period of economic recession or forcing senior citizens to pay back the millions of dollars in prescription refunds they received under the law, Obama struck a conciliatory note, reiterating his pledge to repeal a reporting requirement for small businesses and embracing malpractice reform.

The administration may have hoped to move health reform to the back burner, look at it through the “rearview mirror,” as today’s Politico described it, but that is unlikely to slow the coming budgetary show-down over health funding and implementation. Obama relied on the strategy that he had deployed throughout the first part of the health care reform debate: set the basic framework of discussion and let Congress figure out the details. Here, he assured the public that he would not support unwinding the law but left Democrats in Congress with the task of articulating the consequences of repeal. Needless to say, those hoping that Obama would seize on the opportunity to rebuild fledgling public support for the law and highlight the progress HHS has made in implementing the measure, were left disappointed.

Obama certainly reached out his hand to conservatives — “If you have ideas about how to improve this law by making care better or more affordable, I am eager to work with you,” he told them — but he didn’t offer any progressive proposals that would have rallied his base and improved the law. Maybe it wasn’t that kind of speech. Obama eschewed the traditional laundry list and instead delivered a thematic address about what the nation needs to do to “win the future.” But it’s troubling that the President didn’t establish a more direct contrast on the issue, particularly when the opposition is preparing to pursue a very clear agenda and stopping their attempts to undo the law will be so critical to securing that future.

As President Obama prepares to defend the Affordable Care Act in tonight’s State of the Union address, a bipartisan group of senators have reintroduced two separate bills to repeal a portion of the law. Both measures seek to eliminate a requirement that businesses fill out a 1099 tax form for purchases over $600:

- SEN. MIKE JOHANNS’ (R-NE) BILL 52 CO-SPONSORS, 12 DEMS: The bill would repeal the reporting requirement and would pay for the loss in revenue by directing Office of Management and Budget (OMB) to identify $39 billion in unspent and obligated accounts. In November, the bill failed 61 to 35, but 21 Democratic voted for the measure.

- SEN. MAX BAUCUS’ (D-MT) BILL CO-SPONSORED WITH REID: The bill would repeal the reporting requirement, without making up the $17 billion in lost revenues.

Both sides have played politics with the issue, although everyone — including Obama — agrees that the measure would present a serious paperwork burden to employers were it to go into effect in 2012. But at the end of last year, Republicans twice objected to attaching a repeal measure to the tax compromise and Democrats have failed to come up with an alternative way to pay for repeal.

Johanns’ measure has its problems, but it’s not clear what Democrats stand to gain by drawing out the debate — if they want to produce their own repeal alternative, then they best find some way to pay for it. One thing worth highlighting, however, is that Johanns is asking the OMB to identify $39 billion in savings while the revenue lost from eliminating the 1099 requirement is just $17 billion. He pays for it and then some.

The 1099 provision was originally designed to bolster the tax compliance of sole proprietors and pay for the coverage expansion in the law.

The House Education and Workforce Committee (one of the committees responsible for designing bipartisan alternatives to the Affordable Care Act) held its first organizational meeting today to approve committee rules and procedures. The 17 Democrats on the panel also offered a preview into how they plan to combat GOP efforts to undermine the gains of the reform act, offering two amendments aimed at preserving health reform’s most popular provisions and the increased government investment in Pell Grant scholarships. Below is the text of the health amendment offered by Rep. Rob Andrews (D-NJ):

(1) the right of young adults under 26 to stay on their parents’ health plan; (2) the prohibition on health insurance issuers and group health plans against imposing annual and lifetime limits; (3) the prohibition on health insurance issuers and group health plans against rescinding an individual’s health coverage due to illness; (4) the prohibition on health insurance issuers or group health plans against denying coverage to or otherwise discriminating against individuals due to a pre-existing condition; or (5) the deficit savings of $230,000,000,000 during the 10-year period beginning after fiscal year 2011 that was achieved through the enactment of the Patient Protection and Affordable Care Act (Public Law 111–148) and the Health Care and Education Reconciliation Act of 2011

All the Republicans voted down both amendments without discussing their contents or explaining why they disagreed with these priorities, striking a new tone in the post-repeal Congress.

Throughout last week’s repeal debate on the House floor, many Republicans hinted that they supported the aforementioned provisions but sought to repeal the entire law so they could start over in a more bipartisan fashion. They touted the Republican 2009 health care proposal (which includes the first three proposals and even offers a variation of the fourth) and hinted that they would include patient protections in a package of alternatives. Of course, failing to incorporate protections in the rules doesn’t prohibit Republicans from adding them into the alternative legislation, but today’s party-line rejection of two Democratic proposals certainly doesn’t bode well for the promised bipartisanship of the process or the priorities of the final replacement bill (should the committee ever produce one).

David Leonhardt points to this fascinating new report from the National Academy of Sciences which finds that smoking, obesity rates and lack of equitable access to health insurance coverage are literally killing Americans:

Over the last 25 years, life expectancy at age 50 in the U.S. has been rising, but at a slower pace than in many other high-income countries, such as Japan and Australia. This difference is particularly notable given that the U.S. spends more on health care than any other nation….

Three to five decades ago, smoking was much more widespread in the U.S. than in Europe or Japan, and the health consequences are still playing out in today’s mortality rates, the report says. Smoking appears to be responsible for a good deal of the differences in life expectancy, especially for women….

Obesity’s contribution to lagging life expectancies in the U.S. also appears to be significant, the report says. While there is still uncertainty in the literature about the magnitude of the relationship between obesity and mortality, it may account for a fifth to a third of the shortfall in longevity in the U.S. compared to other nations, the report says….

Lack of universal access to health care in the U.S. also has increased mortality and reduced life expectancy, the report says, though this is a less significant factor for those over age 65 because of Medicare access….

Since repealing health reform is the number one agenda item for Republicans in Congress — just today, Senate Minority Leader Mitch McConnell (R-KY) said that he would pressure Democrats to hold a repeal vote in the Senate — I don’t see why Democrats don’t argue that taking away insurance from 32 million Americans will lower U.S. life expectancy. After all, actions have consequences and if Republicans want to push through repeal, then they should be held accountable for their vote. (Notably, they’ve also been dismissive of Obama’s anti-obesity campaign.)

This kind of language generally makes people feel very uncomfortable (especially after the Tuscon tragedy) and some will find equivalency between the GOP’s lines about “job killing” and “death panels” and the approach I’m suggesting. But the difference is that — as this report suggests — the argument that uninsurance kills people is actually true.

Yesterday, Rep. Michele Bachmann (R-MN) called on newly-minted Governor Mark Dayton (D) to cancel an expansion of Medicaid for some 95,000 Minnesotans, for fear that it would commit the state to fully implementing the Affordable Care Act. Dayton recently signed an executive order taking advantage of a provision in the law that allows states to expand the program before 2014, bringing in an estimated $1.3 billion to the state.

Bachmann urged Dayton to rescind the order without offering any plan for how to extend coverage to the 95,000 Minnesotans who would benefit from the expansion:

“All across the country we’re seeing that ObamaCare is driving up healthcare costs. Insurance premiums are rising. Bureaucrats are starting a process that will expand the list of minimum benefits insurance companies must offer. That will raise the price of health insurance and take away consumer choice.

“Serious steps are being taken to stop this job-destroying legislation that will cause healthcare costs to rise exponentially. Yet here in Minnesota, Governor Dayton is unyielding in his desire to fully commit our state to it.

“We are here this morning to call on the Governor to change course.

“If Governor Dayton truly believes that cutting spending and shrinking the size of government are complex issues, then how can he not at least withdraw his Executive Order [that will expand medical assistance, ensnare the state in ObamaCare, and cost Minnesotans millions of dollars], sit down with these lawmakers, and work on the kind of bipartisan healthcare solutions that will not add to our state’s $6 billion deficit.”

This best illustrates the difference between someone who is truly interested in addressing the access problems facing the states and Bachmann, who as the Governor suggested, is “playing presidential politics with the citizens of our state.” Now, to be sure, many governors may be troubled by the scale of Medicaid enrollment increases, but these are concerns that can all be addressed. The bottom line is that over the short term — especially until 2016 — the Medicaid expansion provisions provide states with a lot of extra cash, insure more residents and consequently allow states to reduce payments they make to support uncompensated care costs. (The federal government picks up the entire tab of Medicaid expansion until 2016 and pays for 95% of the expansion in 2017, 94% in 2018, and 93% in 2019. Beginning in 2020, it will fund 90% of the expansion).

As a governor who wants to actually resolve the health care problem rather than bloviate about it, Dayton would be foolish not to take advantage of these provisions. Minnesota will be able to cover a large number of residents at little direct cost (a Kaiser Family Foundation report estimates that the federal government will pick up 95% of the cost of the expansion) and that’s an infinitesimally better proposition than Bachmann’s non-existent solution to the uninsurance problem.

Early reports indicate that while President Obama will defend the health care law in tomorrow’s State of the Union Address, he will also reach out to Republicans to suggest that he is open to revisiting, improving, or even tweaking certain parts of the legislation. As HHS Secretary Kathleen Sebelius told The Hill on Friday, “I hope that we can work together around some areas where the bill can be improved, or we certainly make it better, but recognize that this is the new platform,” she said.

Over the weekend I asked various health care experts — including Len Nichols, Director of the Center for Health Policy Research and Ethics at George Mason University, John Holahan, Director of the Health Policy Research Center at The Urban Institute, and Harold Pollack of the University of Chicago — to identify what those areas are. What follows is a synthesis of their suggestions: five ways Obama can work with Republicans to improve the health law:

1. Propose serious national malpractice reform:

Len Nichols suggested that Obama and Boehner “should jointly appoint a commission with the power to make recommendations — if 2/3 of them can agree — that will become law in every state unless 2/3 of each state legislature (both houses, save in Nebraska) votes no (if they do vote no, that means they like their current deal better than new one. Couple of states might do this, legitimately).”

John Holahan also argued that malpractice reform may be an area ripe for bipartisan compromise. As a senator, Obama co-sponsored Sorry Works legislation that would have given physicians who disclosed their errors “certain protections from liability within the context of the program, in order to promote a safe environment for disclosure.”

2. Embrace “across state lines”:

Len Nichols saw some validity in the GOP’s suggestion that insurers should be allowed to sell across state lines but cautioned that if Obama were to pursue this policy, “we do it on PPACA’s base of a common framework — a reasonable national floor — for insurance market reforms.” “Without a common regulatory framework, as Republicans normally propose this, selling insurance ‘across state lines’ is less about competition that helps consumers than it is about allowing insurers to pick their regulator so they can cherry pick the healthy and drive those who can’t switch domiciles — the non-profit Blues, local HMOs — into adverse selection/death spiral hell.” “Emphasize your desire to make insurance markets work for CONSUMERS, including small business owners, rather than for insurers as does the status quo,” Nichols suggested. “Again, this would show you’re willing to listen to Republicans and compromise, but they’ve got to be realistic about the way insurance markets actually work for real people.”

3. Offer states greater flexibility:

Harold Pollack argued that finding ways to “free more resources for fiscally-challenged state governments would be quite valuable. Extending Medicaid subsidies embodied in the stimulus would provide essential help to state governments, while reducing the potential for further punishing layoffs during a deep recession.”

John Holahan said that states have reason to complain about the law’s requirement to maintain Medicaid eligibility for all populations and hinted that Obama could offer states some leeway in limiting the program to optional populations.

Len Nichols suggested that Obama should embrace the spirit of Wyden-Brown: “if you can come up with a way to cover as many, (roughly) as comprehensively, by all means let’ talk, say we’ll entertain your proposal before enforcing PPACA entirely from DC.” “The truth is the scale of Medicaid enrollment increases — especially in southern, red states — is huge, and many politicians are leery of adding so many to a program that already is the number one budget problem in most states. If they’d rather put more in the exchange, with perhaps lower benefit packages than we would all like (and progressives dream of) but which those low income non-pregnant adults have no hope of getting now, why fight that if that will help PPACA get over the hump of broader acceptance and embrace? Along those lines, at a minimum offer to phase in Medicaid expansion if individual states prefer. Forty-eight to fifty states will, I bet you,” Nichols said.

4. Do more to control health spending:

“The biggest traction the Republicans gained with independents in the 2010 elections has to do with budget/fiscal/debt worries,” Len Nichols argued. “We can argue about CBO scoring vs. Holtz-Eakin exaggerations until we’re blue in face, but the key thing now is to show you hear the fears and you are taking steps to mollify them. So, embrace a budget ‘failsafe’ trigger, that would slow down coverage expansions or scale back future generosity of premium/cost-sharing subsides if Medicare/delivery system reforms fail to generate savings CBO scored. CBO was so conservative you’ve got more leeway than you think, your CMS/HHS team can make mid-course corrections in delivery and payment reform to work better over time as well, but mainly what this does is protect the future fiscal balance from an ‘unfunded’ liability which is what independents fear PPACA is,” Nichols said.

5. Decrease burden on businesses:

Harold Pollack suggested that Obama should ask Republicans to pass legislation addressing the 1099 reporting requirement provision, while noting that the party filibustered previous efforts “so that they could run on this as a campaign issue.

John Holahan argued that the penalty for employers who don’t provide coverage but have one full-time employee receiving insurance through the exchanges may be too harsh, and that it may make sense to reduce the fine. Under the law, employers with more than 50 employees would have to pay a fee of $2,000 per full-time employee, excluding the first 30 employees from the assessment. Employers with more than 50 employees that offer coverage but have at least one full-time employee receiving a premium tax credit, will pay the lesser of $3,000 for each employee receiving a premium credit or $2,000 for each full-time employee.

Yesterday, in a sharp reversal from the tone of last year’s health care reform debate, Sen. John McCain (R-AZ) called on Congress to cut Medicare, a program he sought to protect from any spending reductions in the health law. “Medicare is going to be much more difficult. But we have to go after the sacred cows and we have to go after entitlements,” McCain said on Face the Nation:

BOB SCHIEFFER: Eric Cantor said this morning, on Meet the Press that even cancer research is on the table. Now you and I are cancer survivors.

SENATOR JOHN MCCAIN: Mm-Hm. Mm-Hm. BOB SCHIEFFER: Do you think that’s something where we can cut back? [...]

SENATOR JOHN MCCAIN: We have to go after the sacred cows. And then we have to go after entitlements. And entitlements have to be on the table sooner rather than later. You and I could write the solution to Social Security problems on the back of an envelope. What we have to do is sit down together and go through those– those remedies. Medicare is going to be much more difficult. But we have to go after the sacred cows and we have to go after entitlements. And the longer we wait, the worse the problem is going to be. We have saddled our kids and grandkids with a debt that is unconscionable and unsustainable and outrageous.

Watch it:

Throughout the health reform debate, Republicans falsely claimed that the Affordable Care Act’s estimated $500 billion in cuts to Medicare would undermine senior’s benefits and introduced numerous amendments and motions instructing Congress to remove the cuts. In December of 2009, McCain even urged seniors to rip up their AARP cards to protest the organization’s support for cutting back the program. “I say to my friends, especially those who are under the Medicare Advantage program, the 300,030 in my state who admittedly they are going to cut their Medicare Advantage benefits,” McCain said at the time. “Take your AARP card, cut it in half. And send it back. They’ve betrayed you.”

Now, McCain is returning back to his belief that cutting Medicare is good thing. During the 2008 presidential campaign, McCain announced that he would pay for his health plan “with major reductions to Medicare and Medicaid…in a move that independent analysts estimate could result in cuts of $1.3 trillion over 10 years to the government programs.”

Significantly, the cuts in the health law — which McCain opposed — are far smaller than what he was once proposing. The health law does not cut the current Medicare budget, but slows growth in the program by removing approximately $500 billion from future spending over the next 10 years. The cuts help stabilize the program by eliminating overpayments and slowly phasing in payment adjustments that encourage providers to deliver quality care more efficiently.

Today is the deadline for proponents of the Affordable Care Act to submit their friend-of-the court briefs in Thomas More Law Center v. Obama, a case challenging the constitutionality of the law’s individual mandate. Last year, a U.S. District Court Judge rejected More’s motion for a preliminary injunction against the law, arguing that the mandate fell within the purview of the Constitution’s Commerce Clause, since an individuals’ decision not to purchase coverage will “have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance.”

The case now heads to the Sixth U.S. Circuit Court of Appeals, but a comparison of the different groups that have submitted amicus briefs is telling. While health advocacy groups, disease-specific organizations, and health care providers are standing on the side of reform, the anti-reform column is dominated by politicians and conservative think tanks. In fact, supporters of Thomas More’s lawsuit were unable to attract a single health care organization to join in their effort:

Since President Obama signed reform into law in March of 2010, at least 20 cases, involving federal district courts in 15 states, have been filed. More than a dozen have already been dismissed on one ground or another.

As we previously reported, the Vermont legislature is currently considering a proposal that would pave the way for the state to enact a single payer health care system. While the proposal’s authors found that the state would be able to offer more comprehensive health care and save more money than the recently-passed federal health care law if it were to enact single payer, it is important to note that under current law the state cannot request a waiver to be exempted from the federal health law until 2017.

To counter this, Vermont’s congressional delegation is backing an amendment by Rep. Peter Welch (D-VT) that would move the waiver date up from 2017 to 2014. Earlier this week, Reps. Jim McDermott (D-WA) and Jan Schawkowsky (D-IL) told ThinkProgress that they support Welch’s amendment; additionally, Reps. James Clyburn (D-SC) and Rosa DeLauro (D-CT) appeared to support the principle behind the amendment.

Today, Vermont governor Peter Shumlin (D), who supports the single-payer proposal, appeared on Democracy Now! to talk about his plans to enact it. He explained that he would like to build a bipartisan coalition under the principle of local control and state’s rights to get the waiver date moved up, and told Goodman that, by requesting a change in the waiver, Vermont was not “asking for one additional federal dollar.” Rather, the state is asking to be “able to pool our federal dollars into our existing system here in Vermont, in a uniform system. And I think that will appeal, frankly, to more conservative members of the Republican Congress.” “Give us local control,” he continued. “I think that will appeal to, frankly, some of the Tea Party governors that I have just been elected with”:

AMY GOODMAN: Governor Shumlin, why doesn’t it conflict with Obama’s healthcare proposal? What are the waivers you would need?

GOV. PETER SHUMLIN: Well, the biggest waiver we need—and, you know, we have an incredible congressional delegation, Senator Leahy, Senator Sanders and Representative Welch—but the biggest waiver we need is to ensure that by 2014 we can get the waivers that we need to implement this plan. And really what we want to do is—we’re not asking for one additional federal dollar. All we’re asking is that we are able to pool our federal dollars into our existing system here in Vermont in a uniform system. And I think that will appeal, frankly, to more conservative members of the Republican Congress. What we’re saying is, give us local control. Let us go our own way. We’re not asking for more federal dollars than any other state. What we are asking is that you let state rights stand up and let us design our own system, using those federal dollars as we see fit. And I think that will appeal to, frankly, some of the Tea Party governors that I have just been elected with.

Watch it:

Vermont Digger asked Leigh Tofferi, a Blue Cross-Blue Shield lobbyist based in the state, about the possible move to a single payer system. “If there’s a single payer system, we’d like to be the single payer,” she replied. Harvard’s Dr. William Tsiao, who helped design the Taiwanese single payer system and was one of the consultants responsible for drafting Vermont’s single payer proposal, noted that private insurance companies could continue to play a role in a single payer system by providing supplementary insurance, much like they do with Medicare. However, he also warned that instead of working with reformers, insurers could also use their “deep pockets nationally [to] oppose reforms due to the threats they pose to the Vermont market and other markets that could follow Vermont’s lead.”

The health sector has kept quiet throughout the GOP’s futile effort to repeal the Affordable Care Act in the House, saving its ammunition for the more serious campaign of changing and tweaking parts of the law. This morning Karen Ignagni, the insurance industry’s chief spokesperson, offered a glimpse into what insurers will be lobbying for in the months and years ahead. She hinted that the industry isn’t interested in repeal and is instead focusing on the following issues. Watch it:

Let’s go through it piece by piece:

- Eliminating new taxes on the health insurance industry: Beginning in 2014, the health law imposes an annual fee on the health insurance sector, but Ignagni refers to this as “an unprecedented sales tax on small businesses and individuals” — “a health care sales tax.” Unless the industry offsets the increase through innovation, some of the costs may be passed down to employers and employees — but both of these groups will be receiving tax credits to offset the purchase of coverage. Generally speaking, in a law that pays for its coverage expansions and reduces the deficit, somebody has to pay more if others get more.

- Wants to charge younger people more for insurance: Ignagni claims that “anyone under 40 would see a huge increase” in costs and the industry has already been lobbying the Department of Health and Human Services to adopt a transition period for the age-rating provision of the Affordable Care Act. Under the law, beginning in 2014, insurers will have to guarantee coverage to everyone who applies and charge older people no more than three times what younger individuals would pay. But the industry is saying that if it had to adopt that change instantaneously in January of 2014, younger individuals would face big price increases. This argument isn’t particularly convincing, however, since many young people will actually pay less for coverage because they’ll qualify for subsidies and possibly even Medicaid. That will significantly increase participation among young adults, improve the risk pool, and probably outweigh any negative effects due to age rating. My post on that here.

- Essential benefits packages should be very narrowly defined: Ignagni claims that “if the essential benefit package is so broadly structured that these individuals and small businesses are going to find that the current proposals are unaffordable and they’re going to have to buy up, that is going to be a third leg of the stool in terms of cost increases. ” While there is a reasonable argument that regulators shouldn’t overfill the minimum benefit package and give insurers flexibility in design, you don’t want them to have so much flexibility that they can “continue to compete based on risk-selection, rather than price and quality as intended by the ACA and what is critical for a better functioning health insurance market.” My post on that here.

During the interview, Ignagni was also asked about Wendell Potter’s new book criticizing the industry and its PR practices. Ignagni — who Potter describes in the book as an incredibly effective spin-master — said she hadn’t read the book and didn’t address Potter’s accusations.

Yesterday, as House Republicans voted to repeal the Affordable Care Act, the Vermont legislature heard a proposal for how to move the state to a single-payer system. The report, organized by Bill Hsiao, a professor at the Harvard School of Public Health, would provide insurance to everyone with a common benefit package that would pay at least “87 percent of each Vermonter’s medical and mental health expenses and 77 percent of his or her drug expenses” and channel all the payments to doctors and hospitals “through a single pipe.”

The “pipe,” so to speak, is an Independent Board representing “all the major payers, including, employers, state government and consumers, as well as the beneficiaries or recipients of benefits and payments, including providers and consumer groups.” The board would “negotiate updates to the benefit packages and payment rates to providers,” but outsource all claims administration and provider relations work to a private company. This kind of approach, Hsiao estimates, would create savings that would outpace those of reform, producing savings of “approximately $590 in 2010 US Dollar real terms“:

Specifically, in 2015 project that the cost would decrease by approximately 11% of what they would be under PPACA….Under those savings assumptions, total health care costs in 2015 would reach approximately $5.776 billion in real 2010 dollars, $500 million less than under implementation of PPACA. On a per capita basis, total expenditures would be $8,580 in 2015, or about $750 than under PPACA. The savings would reach about $1.2 billion in 2019. By that year, the total per capita expenditures would increase to $8,800, representing a per capita savings of about $1,800 compared to PPACA.

The plan would be financed through a higher payroll tax on employees and their workers, but Hsiao estimates that the tax burden would be “less than what they are paying in premiums now.” Premiums costs could further be lowered through payment and malpractice reform. Private insurers, meanwhile, will their role greatly reduced, but not entirely eliminated. The report indicates private companies could sell “supplementary insurance” that provides greater coverage than the common benefits package.

Hsiao said that Vermont faced “no fewer than 15 hurdles before it would be able to implement the plan,” not the least of which are some of the new requirements and regulations in the Affordable Care Act. The Vermont Congressional delegation has introduced an amendment that would expand a provision in the law that allows states to propose their own pilot health care programs and seek a waiver from the federal health care law so that they can pursue their own approaches to health care reform. The current law allows states to pursue these waivers in 2017; the amendment would move this waiver date up to 2014. A companion measure has also been introduced by Sens. Ron Wyden (D-OR) and Scott Brown (R-MA) in the Senate, but it remains to be seen how cooperative HHS will be in granting waiver and allowing the state to pursue these reforms.

Yesterday, after the House repealed the Affordable Care Act, Senate Minority Leader Mitch McConnell (R-KY) said he would “assure” a Senate vote on the legislation, despite Senate Democrats’ opposition to holding such a vote. “The Democratic leadership in the Senate doesn’t want to vote on this bill,” McConnell said. “But I assure you, we will.”

During an appearance on Alaska’s KTVA just moments after McConnell made his remarks, Sen. Lisa Murkowski (R-AK) broke with her party leadership and said that even though she would vote to repeal the law, the Senate should not spend its time on “messaging” and should instead focus on more pressing economic issues:

MURKOWSKI: I don’t believe that there are votes sufficient in the Senate to repeal health care reform….We’re in this situation where there is some messaging going on…The real question is how much time do we as a Congress spend on this messaging? We’ve got a situation where our economy continues to be in the tank, the longest extended period of high unemployment since World War II….As important as making sure that we’re reigning in our health care costs — spending a lot of time on the messaging vote? I don’t think that’s what the American public wants us to do. …I don’t think what people want is kind of the messaging that’s going on.

Watch it:

Indeed, following the House passage of repeal, Senate Majority Leader Harry Reid (D-NV), who controls the Senate schedule, condemned the repeal and reiterated — through a spokesperson — that he would not bring the measure to a vote. “This is nothing more than partisan grandstanding at a time when we should be working together to create jobs and strengthen the middle class,” he said in a statement (voicing a sentiment that Murkwoski apparently agrees with).

Murkowski has been on a bit of an independent streak after being disavowed by the Republican party for mounting a successful re-election campaign as a write-in candidate. At the end of last year, she was the only Republican “to cast votes on all four items on President Barack Obama’s wish list: a repeal of “don’t ask, don’t tell,” a tax-cut compromise, the START deal and cloture for the DREAM Act.

Republicans in the House have now repealed health care reform and introduced a new bill to ensure, as they put it, that tax payers are “no longer are coerced” into subsidizing “the killing of an unborn child.” But a study from 2010 analyzing the impact of Massachusetts’ health reform on abortion rates suggests that the GOP’s strong opposition to universal coverage may do more to kill “an unborn child” than anything in the Affordable Care Act. According to that report, “the number of abortions in Massachusetts declined by 1.5 percent during the first two years of the new health care program (2007-2009) and the decline was 7.4 percent among teenagers — even though the percentage of non-elderly people receiving coverage went up nearly 6 percent.” The researcher Patrick Whelan points out that this occurred despite the state’s coverage of abortion services:

Massachusetts is one of 17 states that provide full coverage for abortion under the state Medicaid program (MassHealth) for the poorest residents, and abortion is a covered service under all the Commonwealth Care plans that cover the next tier of income earners. Yet in this midsized, ethnically diverse state, full insurance coverage of abortion services for all lower-income residents did not result in an increase in the number of abortions performed. I believe it is reasonable to conclude that the possibility of some federal subsidization of overall care, for a fraction of the additional 31 million people who would be covered, would not mean a significant or even a likely increase in the number of abortions performed nationally.

Study findings:

As T.R. Reid has noted, women contemplating an abortion are far less likely to seek one if they can afford health insurance for themselves, and feel confident they can provide quality medical care to their newborn children. That is why in Western democracies where abortion services are free and more accessible than in America, abortion rates are actually significantly lower than in the United States. Unfortunately, Republicans typically dismiss this uncomfortable comparison.

After passing a health repeal bill that would add $230 billion to the deficit, Republicans will continue to break their “pledge” today by focusing not on job creation or deficit reduction, as many promised during the campaign, but by increasing government involvement in a woman’s right to choose. H.R. 3, the “No Taxpayer Funding for Abortion Act” would codify the Hyde Amendment, the annual appropriations rider that restricts Medicaid funding for abortions, and extend its restrictions throughout the health care system. Under current law, only specific programs have abortion funding restrictions, and those must be reauthorized every year. H.R. 3 would impose a blanket restriction on all abortion funding, even when the cost of abortion coverage is paid for entirely with private funds.

The bill prohibits both direct and indirect funding streams that might potentially touch on the provision of abortion care and would make abortion as difficult to obtain as possible without actually criminalizing it. And it does this by arguing that money is fungible — that is, if an individual received a tax credit, she will have more private dollars to pay for abortion coverage. Therefore:

- It would deny tax credits to employers or other entities that pay for health plans that cover abortion

- It would deny tax credits to individuals or entities that pay for abortion care

- Disallow medical deductions for payments for any health plan that includes abortion coverage or for any medical expenses related to abortion care

-Treat as income any amounts paid for an abortion from a tax-preferred trust or account, such as a health savings account

Regardless of how Republicans sell this, the act would go far beyond current law and a mere restriction on public funds. The ACA already stipulates that insurers that sell plans in the new exchanges and accept federal offsets for premiums may only offer abortion coverage if enrollees make a separate premium payment for the cost of abortion coverage from private funds and if insurers keep those funds separate from federal premium payments and credits.

What the GOP is doing with H.R. 3 is something entirely different. They’re not only placing new restrictions on abortion services but also expanding the role of government in private life. As CAP’s Jessica Arons put it, “H.R. 3 would redefine the concept of government funding far beyond the current common understanding. Rather than simply prohibiting the use of federal funds to directly pay for abortion, H.R. 3 would insert itself into every crevice of government activity and prohibit even private and non-federal government funds from being spent on any activity related to the provision of abortion any time federal money is involved in funding or subsidizing other, non-abortion-related activities.

Included within the recently passed health care law is a provision that allows states to propose their own pilot health care programs and seek a waiver from the federal health care law so that they can pursue their own approaches to health care reform. The current law allows states to pursue these waivers in 2017. Yesterday, Rep. Peter Welch (D-VT) introduced an amendment to the law that would move this waiver date up to 2014, and he instantly received support from his fellow Vermont public officials Sens. Bernie Sanders (I-VT), Patrick Leahy (D-VT), and Gov. Peter Shumlin (D-VT). There is also support in the Senate for moving the waiver date forward, in the form of an amendment introduced by Sens. Scott Brown (R-MA) and Ron Wyden (D-OR).

Earlier today, ThinkProgress attended a meeting with Democratic House members and asked them about their plans to respond to the Republican push to repeal health care and about their thoughts on Welch’s legislation. Two members of Congress, Reps. Jan Schakowsky (D-IL) and Jim McDermott (D-WA), explictly endorsed Welch’s proposal. Schakowsky told ThinkProgress that she “absolutely” supports the Welch proposal and that Republicans “ought to be for” it because they claim to believe in “states’ rights”:

THINKPROGRESS: [Welch] had mentioned along with the rest of the delegation of Vermont that they’re actually looking at moving the waiver of letting state’s pursue their own health systems from 2017 to 2014 to allow Vermont to pursue sort of a single payer style approach. Would you support moving that waiver?

SCHAKOWSKY: Absolutely. I think that all of the leadership now in Vermont, here in the House, Senate, the Governor had a press conference together in order to do that. Let Vermont show us the way to a single payer system. The former governor was on television last night, Howard Dean, talking about that as well. I think we should be able to experiment. We should give states the option. Republicans ought to be for that. States’ rights, experiment with their own plans, and do a single payer.

McDermott told ThinkProgress that he “of course” supports the Welch proposal. He explained that he had tried to get a single payer system enacted in 1985 in Washington state, but that federal insurance laws prevented him from doing so. He said that “state by state implementation is probably the best way to go”:

THINKPROGRESS: You mentioned earlier that you were a single payer advocate, states like Vermont or maybe California, may move ahead and implement state based programs like that, but they need a waiver from the federal government; the current waiver kicks in at 2017, some members are trying to push that waiver forward and implement those systems in 2014, would you support that?

MCDERMOTT: Of course. I basically tried to do that in the state of Washington in 1985. But the problem at that point was you couldn’t get everybody in the state into it because of ERISA. [...] The big companies use ERISA as their protection, they were not willing to allow the state of Washington to develop their own plans. I watch what happened in Canada in ’67 when Tommy Douglas put the program together in Saskatchewan. My view is that state by state implementation is probably the best way to go.

Watch it:

Meanwhile, at least two members of the Democratic leadership — House Democratic Steering and Policy Committee Co-Chair Rep. Rosa DeLauro (D-CT) and Assistant Minority Leader Rep. James Clyburn (D-SC) — expressed positive support for Welch’s idea without explicitly endorsing his amendment. DeLauro told ThinkProgress that we should “talk about” Welch’s amendment and that she’s never said that states shouldn’t be able to go forward with their own plans if they have “a better plan.” When asked if that meant she thought Welch’s idea was a good idea, she replied that it “does” sound like a good idea:

THINKPROGRESS: Let’s say a state like Vermont, Congressman Welch’s state, have a plan that is more progressive, that meets all the requirements of the Affordable Care Act, but is maybe more efficient, covers more people, is more comprehensive, right now a state like that can request a waiver to do their own health care system but they have to wait until 2017. Congressman Welch is proposing we move that to 2014, so that maybe they can move forward.

DELAURO: Let’s talk about it. Where you have more progressive plans. I have said I’ve never been one to say we ought to we shouldn’t if a state has a better plan, whether that’s on food safety, or health care, that we shouldn’t do is to lower the standards. The standards should always be raised in these arenas.

THINKPROGRESS: So it sounds like you’re saying it’s a good idea.

DELAURO: It does. Let’s see what the fish hooks are, let’s see what the benefits are. And let’s have a debate about it. About the principle of it needs to be what we’re dealing with here and how we can make this piece of legislation a stronger piece of legislation. No one has ever said that this is it, it’s cast in concrete and that’s it we’re not moving on. It would be foolish to do that.

Watch it:

Meanwhile, Clyburn told the blogger meeting that there is a precedence for states opting out of federal laws if they can meet the minimum requirements or exceed them, citing the case of South Carolina, which opted out of certain provisions of the Civil Rights Act because it exceeded the requirements. Clyburn appeared to use the analogy to support Welch’s idea, asking rhetorically, “What’s wrong with that?”

– Zaid Jilani and Kevin Donohoe