With their one-time Recovery Act funds about to expire, budget conscious governors from around the nation are petitioning the Department of Health and Human Services to give states more flexibility in how they manage Medicaid. More than half the states “want permission to remove hundreds of thousands of people from the Medicaid insurance program,” and some conservative governors are proposing radical changes to how the program is financed.

Under the current arrangement, Medicaid — which provides health coverage to approximately 53 million lower income Americans — operates under a matching fund basis. That is, the federal government matches state spending on a per-claim basis; it pays a fixed percentage of each state’s Medicaid costs (anywhere between 50 and 75 percent), sending more money to the states as their costs increase. It in turn also requires states to maintain certain eligibility and benefit standards and grants waivers to states that seek to alter the program on a case-by-case basis.

But as Politico’s Sarah Kliff reports, GOP governors attending the National Governors Association’s winter meeting are now asking the federal government to permanently convert the the existing matching system into block grants, where states would receive a fixed dollar amount annually that would fall below current growth projections:

“For myself, I would take a capped blocked grant in return for true flexibility to run the program,” Mississippi Gov. Haley Barbour told reporters. “We could use money more widely.”

Barbour said that he’s heard “a lot of talk” about Medicaid block grants throughout the NGA conference and would expect to hear more of it as the meetings continue through Monday….

Florida Gov. Rick Scott even took to CNN’s “State of the Union” Sunday morning, before attending the NGA health meeting, to make the case for block grants.

“All of us know that Medicaid is a problem for the states,” he said. “So we are going to do a better job of managing our Medicaid population and our Medicaid program. We would like the federal government to just give us a block grant because I could spend the money way better without all the strings attached.”

While anyone would welcome state-centric proposals that reduce costs without undermining coverage, under this arrangement, the cost of the program is shifted from the federal government to the states, which would be responsible for bearing the cost of any increases in Medicaid spending once the capped federal contribution is exhausted. In all practicality, states would either have to increase their contribution to the program or (more realistically) cap enrollment, cut eligibility, stop offering mandatory benefits, lower provider reimbursements etc. As the CBO put it in examining Rep. Paul Ryan’s (R-WI) Medicaid block grant proposal: “reducing federal payments for Medicaid relative to currently projected amounts would probably require states to provide less extensive coverage, or to pay a larger share of the program’s total costs, than would be the case under current law.”

After all, had the block grant structure been in effect during the Great recession, when an increasing number of Americans lost their employer-sponsored health care coverage and turned to the Medicaid program, it’s likely that states would be in even more dire straights. Under the block grant proposal, states would have received significantly less from the federal government than under current law and would have had to absorb significantly higher Medicaid costs while dealing with plummeting state tax revenues and large budget shortfalls. That would meant a lot more people without coverage and as CAP’s Tony Carrk explains, a far higher unemployment rate.

Instead, the federal government reacted to the economic crisis by temporarily increasing its share of Medicaid funding in the Recovery Act. Those funds are set to expire on June 30 and states will have to make up for the budget shortfall until new federal funds can be used to expand the Medicaid program in 2014 (in accordance with the Affordable Care Act). HHS is working with states to find maximum savings and today President Obama asked the NGA to form a bipartisan task force that would develop solutions to lower health costs. But those proposals shouldn’t leave millions of lower income Americans without coverage or establish a system of financing that would force states to curtail their health programs during the periods of greatest need.

The New York Times’ Kevin Sack is reporting that President Obama is ready to endorse Sens. Ron Wyden’s (D-OR) and Scott Brown’s (R-MA) ‘state flexibility’ amendment, which would move up the date for when states can opt out of certain requirements of the Affordable Care Act and pursue innovative methods for expanding access and reducing costs. Under the measure, states can opt-out of the law’s individual mandate provision, the employer penalty for not providing coverage, standard benefit package design and the structure of the health insurance exchange beginning in 2014 so long as their alternative solutions cover as many beneficiaries with comprehensive coverage as the existing health law. Currently, states are not able to receive the waivers until 2017:

Senior administration officials said Mr. Obama would reveal to the National Governors Association in a speech on Monday morning that he backs legislation that would enable states to request federal permission to withdraw from the law’s mandates in 2014 rather than in 2017. The earlier date is when many of the act’s central provisions take effect, including requirements that most individuals obtain health insurance and that employers of a certain size offer coverage to workers or pay a penalty.

The announcement is the first time Mr. Obama has called for changing a central component of his signature health care law, although he has backed removing a specific tax provision that both parties regard as onerous on business. The shift comes as the law is under fierce attack in the courts and from Republicans on Capitol Hill and in statehouses around the country.

The bipartisan amendment that Mr. Obama is now embracing was first proposed in November, eight months after enactment of the Affordable Care Act, by Senators Ron Wyden, Democrat of Oregon, and Scott Brown, Republican of Massachusetts. Senator Mary L. Landrieu of Louisiana, a Democrat, is now a co-sponsor.

Obama’s endorsement is a boon for a state like Vermont — which is considering pursuing a single-payer health care system — and other states considering more progressive policy solutions, but it also serves an important political purpose. By allowing states to opt out of the individual mandate on the day that it goes into effect, the administration is giving states that are now challenging the policy an exit lever without sacrificing coverage or affordability standards. The amendment even allows the administration to adopt a more offensive tact as it moves into the 2012 election cycle, telling states that they need to focus on developing workable alternatives that can help bring down health care costs and expand coverage rather than filing lawsuits over the provision.

Still, it’s unclear how many states would be able to meet the requirements of the waiver. While Wyden has championed the “innovation” concept throughout the health debate, some progressive health policy analysts have questioned if states that adopt less drastic initiatives will be able to reform the health insurance market without implementing the individual mandate. Under the law, states would still have to abide by the popular insurance market reforms like prohibiting insurers from excluding coverage for pre-existing conditions based on health statue, guaranteeing the availability of coverage for all those who apply, and charging applicants a “community” premium.

January Angeles, a health policy analyst at the Center on Policy and Budget Priorities, for instance, argues that states would have a hard time implementing the guaranteed issue and community rating reforms if it does not compel younger and healthier individuals to enroll in coverage. “There is no way to implement those market reforms” without a mandate, she told me during an interview last year. “There is just no way to make it work and have the popular elements of reform.”

But Wyden’s office argues that “if a state can’t come up with a solution that meets those reforms and all of the other cost and coverage requirements then it won’t qualify for a waiver.” “Senator Wyden wrote the state waiver provision to be purposefully unspecific so that states would be free to innovate new ideas that none of us may have thought of yet,” Wyden’s communications director Jennifer Hoelzer wrote me in email.

Earlier this month, Sens. Lindsey Graham (R-SC) and John Barrasso (R-WY) introduced a more extreme measure would allow states to “opt out” of the individual mandate, Medicaid expansion, and employer requirements, but would exempt states from having to offer other coverage alternatives.

Following Judge Roger Vinson’s ruling invalidating the Affordable Care Act, a new Kaiser Family Foundation poll finds that almost half of Americans either believe that the health reform law has been repealed (22 percent) or don’t “know enough to say whether it is still law (26 percent).” Still, a majority want to keep major elements of the law, oppose defunding the measure, and would like to see Congress expand it or keep it as is:

The public’s unfamiliarity with the legal status of ACA is probably the most interesting finding, but it’s also the easiest to explain. The GOP’s hyperbolic campaign against the law (the conflicting votes for repeal in the House and the Senate) is at least partly responsible for the public confusion, but so is Vinson’s ruling itself — he issued a declaratory judgment without an injunction and the federal government continues to implement the law while some states are already sending money back. (It also doesn’t help that the media is much more likely to cover Vinson’s ruling than other district court decisions upholding the law.)

Americans have consistently said they they’re much more interested in jobs and the economy than revisiting the health law and given the general lack of knowledge about civics and all of the other competing priorities that populate daily life, the state of the law (which has not yet kicked in to a large degree) is a back-burner issue.

Shortly after Tea Party Judge Roger Vinson issued an error-ridden opinion striking down the Affordable Care Act, a non-party to the lawsuit named Robert Smith attempted to appeal Vinson’s decision. Vinson promptly replied by dismissing Smith’s notice of appeal on the grounds that, as a non-party, Smith cannot appeal. Yet there’s a big problem with Vinson’s decision to dismiss this appeal — as a trial judge, Vinson lacks the legal authority to decide an appellate matter.

The U.S. Court of Appeals for the Eleventh Circuit released an order today reminding Vinson who is in charge:

A district court has a ministerial duty to forward to the proper court of appeals any notice of appeal that is filed. District courts cannot dismiss an appeal based on a perceived defect.

In light of these well-established principles, Respondents, including the District Judge, are directed to file a response to the petition for writ of mandamus within 14 days of the date of this order.

It is, to say the least, unusual for a court of appeals to order a trial judge to explain why he failed to follow the law in handling a routine matter. While it is likely that Smith’s appeal will ultimately be dismissed by the Eleventh Circuit, Vinson’s inability to complete an easy and purely ministerial task raises questions about his competence.

Moreover, it is reasonably likely that the Eleventh Circuit issued this unusual order as a warning to Vinson against overreaching his own authority yet again. In Vinson’s erroneous decision striking down just one provision of the Affordable Care Act, Vinson not only reached the bizarre conclusion that the entire Act must be cast aside because one small piece is “defective,” he also implied that the federal government must immediately cease applying any part of the law. DOJ responded to Vinson’s legally-questionable opinion by pointing out that, among other things, Vinson did not take any of the legal steps that a judge is required to take before enjoining a party against future action — and seeking clarification about whether Vinson really meant that, despite his own failure to carry out these required legal steps, the United States is no longer allowed to enforce the ACA.

In light of this context, today’s Eleventh Circuit order pointing out a different, far less significant error on Vinson’s part could very well be a warning to the Tea Party judge that his judicial superiors are watching and they are prepared to put him in his place.

Politico’s Maggie Haberman scoured through Gov. Mike Huckabee’s new book A Simple Government to find that the likely presidential candidate is doubling down on his criticism of Mitt Romney’s signature health reform law in Massachusetts, arguing that reform has failed to control health care costs:

“If our goal in health-care reform is better care at lower cost, then we should take a lesson from RomneyCare, which shows that socialized medicine does not work,” he writes. [...]

“Not only is ObamaCare cost prohibitive, it’s already been shown to not work!” Huckabee writes on page 84 of his book.

“In chapter 2, I mentioned how the federal government ignored the negative results of the health-care ‘experiment’ known as RomneyCare. It could be argued that if RomneyCare were a patient, the prognosis would be dismal. ‘No one but Mr. Romney disagrees,’ quipped Joseph Rago, senior editorial writer for the Wall Street Journal, in a piece entitled ‘The Massachusetts Health-Care Train Wreck.’” [...]

“A noble goal, indeed, but when the Massachusetts Taxpayers Foundation stepped into the lab to examine this experiment-in-progress, they found that health care, which was 16 percent of the state budget in 1990, had jumped to 35 percent in 2010. (That’s not a typo; health care is consuming over a third of the entire state budget!),” Huckabee writes. He adds, “You get one guess as to who now has the highest average health-insurance premiums in the country. Yep, it’s Massachusetts!”

Of course, Romney or anyone else associated with the very popular 2006 law would be the first to admit that unlike the Affordable Care Act, Massachusetts reform expanded access to care without controlling health care spending and as a result costs are now consuming a greater portion of the state budget.

As Romney himself explained in 2009, “when we were looking at solving the health care challenge here in Massachusetts, our focus was on getting people who were uninsured insured and stopping the practice of passing their cost on to the rest of the population. We really were unable to deal with and didn’t have any pretense that we would somehow be able to change health care costs in Massachusetts.” “Massachusetts is a model for getting everybody insured in a way that doesn’t break the bank and that doesn’t put the government into the driver’s seat and allows people to own their own insurance policies and not to have to worry about losing coverage,” he added.

Massachusetts reform proved that the individual and employer mandates can successfully increase access to coverage while showing that lawmakers must do more to control health spending. In fact, Gov. Deval Patrick has recently introduced a plan to contain costs.

During an interview with the Associated Press on Wednesday night, Huckabee called RomneyCare the “800 pound gorilla in the room for him” and said that the Massachusetts governor should just fess up and admit his health care program’s not working.

“The position he should take is to say: ‘Look, the reason Obamacare won’t work is because we’ve tried it at the state level and we know it won’t work,’” Huckabee told AP. “It cost more, waiting times were higher, quality of care went down, people were greatly dissatisfied and it ended up having almost the polar opposite effect of what was intended.” Despite Huckabee’s assertions, countless surveys found that a majority of resident overwhelmingly approve of the state’s health care overhaul.

Yesterday, a third district court judge found the Affordable Care Act to be constitutional, ruling that the law’s minimum essential coverage provision is within Congress’s power to regulate commerce. In her 64-page opinion, Judge Gladys Kessler of Federal District Court for the District of Columbia — a Clinton appointee — dismissed the plaintiff’s contention that the provision illegally regulates ‘inactivity,’ arguing that individuals who fail to purchase coverage “will ultimately get a ‘free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.” “Because of this cost-shifting effect,” she wrote, the plaintiff’s activity-inactivity distinction is irrelevant:

It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

As is the argument that the regulation of health insurance will lead to mandates for purchasing other private goods:

This second aspect of the health care market distinguishes the ACA from Plaintiffs’ hypothetical scenario in which Congress enacts a law requiring individuals to purchase automobiles in an attempt to regulate the transportation market. Even assuming that all individuals require transportation in the same sense that all individuals require medical services, automobile manufacturers are not required by law to give cars to people who show up at their door in need of transportation but without the money to pay for it. Similarly, food and lodging are basic necessities, but the Court is not aware of any law requiring restaurants or hotels to provide either free of charge.

It should be emphasized that this distinction is not merely a useful limiting principle on Congress’s Commerce Clause power. Rather, it is a basic, relevant fact about the operation of the health care market which is critical to understanding the ACA’s efforts to reform the health care system. The requirement placed upon medical providers by federal law to care for the sick and injured without recompense is part of the cost-shifting problem that Congress sought to redress by enacting the ACA. When a supplier is obligated by law to produce goods or services for free, there is bound to be a substantial effect on market prices if consumers’ behavior results in that obligation’s frequent invocation.

Kessler also found that the individual mandate is a “critical element in Congress’s comprehensive plan” and dismissed the plaintiff’s claim that the provision undermined religious freedoms since anyone who objects to having health care, can pay the penalty for remaining uninsured. She did reject the government’s contention that Congress could enact the law under the General Welfare Clause, saying that Congress “did not intend [the law] to operate as a tax.”

Two other judges have ruled the provision unconstitutional, the most recent of which, Judge Roger Vinson in Florida, voided the entire law.

Read Kessler’s full decision HERE.

Potential 2012 presidential candidate and former Pennsylvania senator Rick Santorum (R) is determined not to be outflanked by fellow conservatives on the Affordable Care Act, telling a group of activists in Spartanburg, SC over the weekend that the law is so bad, it will literally end the nation:

“If we don’t repeal ‘Obamacare,’ America as we know it is over,” he told the Palmetto House Republican Women and other members of the conservative faithful during a dinner speech held at the Marriott in Spartanburg.

Santorum also took a page out of former Minnesota Governor Tim Pawlenty’s (R) rhetorical playbook by comparing the federal government to a drug dealer and the states and individuals who accept government dollars, including the Wisconsin labor protesters, to drug addicts:

“What these folks are in Washington is no better than a drug dealer,” said Santorum, who lives with his wife and seven children in northern Virginia.

“They give you a subtle narcotic to make you feel better as you do worse.”

He went on to compare protesting union members in Wisconsin to addicts.

“They are acting like their drug is being taken away from them,” Santorum said.

This kind of rhetoric is red meat to the GOP base; expect Republicans to trip over themselves in condemning the health law (and every other accomplishment) in the strongest terms possible as we move closer to the primary season. They will likely have to moderate their approach in a general election setting, but I suspect that so-long as they stick to very general broad-brush condemnations they’ll be on safe ground politically. As we’ve seen, the problems arise when Republicans have to address the specific provisions in the law and register their positions on such popular elements as keeping children on their parents’ plan and eliminating coverage denials based on pre-existing conditions. Those elements are already in place and while one can somehow justify saying very extreme things about a 2,000 page bill that took months and months, claiming that extending dependent insurance to college students will destroy the nation is going to be a much tougher sell.

At a Monday meeting with the Bucks County Courier Times editorial board, Sen. Pat Toomey (R-PA) claimed that many companies were dropping their health insurance coverage as a result of the Affordable Care Act and promised to provide a detailed list of employers contemplating the change. “I think there have been actual drops,” Toomey said, when pressed on how companies have reacted to the law.

But Toomey is now conceding that he is unable to provide such a list, claiming that he “misspoke” last week when he claimed that the law is forcing “many” businesses to eliminate coverage:

When asked again for the government list Toomey referenced to the editorial board, [Toomey spokesperson] Soloveichik said it appeared no such list exists. “This is partly because the law is not fully in effect yet and a lot of the consequences remain to be seen,” she said in an e-mail.

Early Wednesday evening, Toomey contacted the Courier Times to say he “misspoke” when he said that such a list existed.

Toomey added that “quite a number” of organizations had requested waivers from the law, “but not a whole lot have dropped coverage,” though he added that he expects it will happen.

Toomey’s logic is hard to follow: he’s warning of a mass erosion in employer insurance, while condemning a mechanism that is designed to prevent companies from dropping coverage.

Some businesses have claimed they would drop coverage if forced to comply with the new regulations that prohibit employers from placing lifetime and annual caps on coverage (among other provisions), even though the number is difficult to quantify. In fact, the Affordable Care Act seeks to mitigate potential coverage drops by granting temporary waivers that would provide employers (insurers and states) with additional time to comply with the law. But Toomey opposes such flexibility, even though the overwhelming majority of employers are indicating that they’re willing to comply with the law by 2014.

As Bucks County Courier Times’ Jo Ciavaglia points out, “Mercer LLC’s November survey of 2,800 U.S. employers found that 20 percent of employers with between 10 and 499 workers stated that they’d likely drop coverage in 2014.” Just 6 percent of businesses “with at least 500 employees and 3 percent with at least 10,000 employees stated they’re likely to drop their plans once key provisions of the law take effect in 2014.” Similarly, “Crain Communications’ online survey of nearly 3,700 business executives in April found that 52.5 percent ‘strongly disagreed’ that it would be better for their companies to stop offering health care benefits and pay a fine under the new law.”

Mercer’s Tracy Watts explained, “Employers are reluctant to lose control over a key employee benefit.” “But once you consider the penalty, the loss of tax savings and grossing up employee income so they can purchase comparable coverage through an exchange, dropping coverage may not equate to savings.”

Indeed, a June 2010 study of how the far more rigid Massachusetts employer mandated affected coverage in the state found that “enrollment in employer plans in Massachusetts grew during the four years many of the reforms on which the federal law is based have been in place.”

TIME’s Kate Pickert has the audio of Alaska Governor Sean Parnell’s pronouncement that he would not accept federal funds to implement the exchanges in the Affordable Care Act, citing a district court ruling in Florida which found the individual mandate unconstitutional and invalidated the entire law. Here is the relevant portion:

Seven state legislators who support the federal mandated health insurance have urged me to apply for federal funds to establish a state health insurance exchange in conformance with the new federal health care law. Never mind according to these lawmakers the Florida judge held that health care law unconstitutional and stopped its implementation here. These lawmakers, three of whom are lawyers and know better, urged me to violate – I’m a lawyer to so I’m not going to laugh [crowd laughing]. Huh, I’m a recovering one [crowd laughing]. What these three lawmakers, plus the four others, urged me to violate the court ruling, which is effectively an injunction halting the implementation of the federal health care legislation. I of course will not do so. [...]

The result, Alaska now swims freer of federal entanglement then these other states. These other states are now trying to find out what to do with the oppressive constraints of money taken under a constitutional regime. Next, the supporters of the federal health care law claim, in a letter to me, that the feds will take over implementation of the federal health insurance exchange if I don’t do it. Not true. So long as this court order is in place the federal government is barred from implementing the mandates and the provisions of that federal health care law. That claim is patently false in light of the court ruling. Can the decision be appealed by the federal government? Of course it can. However, at this time, the courts declaratory judgment that the federal health care law is unconstitutional is the law of the land as it applies to Alaska, and 26 other states, by the way. And we will not proceed down an unlawful course to implement it.

It’s difficult to know where to begin, so I’ll start with the most recent events first. Yesterday, the administration filed a motion asking Florida District Court Judge Roger Vinson to clarify the practical impact of his holding, effectively asking for a stay of his decision. “Defendants will appeal both the Court’s judgment and the rulings that underlie it,” the government wrote. “This motion respectfully asks the Court to clarify the scope of its order, in particular that its declaratory judgment does not relieve the parties to this case of any obligations or deny them any rights under the Affordable Care Act while the judgment is the subject of appellate review.” In his ruling, Vinson found that of the 26 states that took part in the lawsuit just two — Utah and Idaho — had standing to challenge the law. That means that the other 24, including Alaska, are on shaky ground if they decide to halt implementation.

From his comments, one would think that Parnell hasn’t applied for any federal dollars that were appropriated through the Affordable Care Act. But Alaska has asked for and received $2.9 million from the ACA. That includes: Medicare improvements for patients and providers, epidemiology labs, strengthening public health infrastructure to improve health outcomes, the maternal and child home visitation program, background checks for long-term care providers, workforce development, and HIV Prevention and Public Health Fund activities. Why those dollars don’t fit under the description of “oppressive constraints of money ” is unclear, as is the question of why Parnell thinks that it is worse to be broke than to receive an enormous pool of money that you are not allowed to spend in frivolous ways.

His claim that the federal government won’t be able to implement a federal exchange is also misguided. As the law states, if a state “will not have any required Exchange operational by January 1, 2014,” “the Secretary shall (directly or through agreement with a not- for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.” Of course, if a formal stay is granted, then the government can proceed implementing this portion of the law.

The Congressional Budget Office (CBO) is out with an updated estimate of the effects of H.R.2, the Repealing the Job-Killing Health Care Law Act, which passed the House of Representatives on January 19, 2011. According to the CBO, the GOP’s much-touted repeal would “cause a net increase in federal budget deficits of $210 billion over the 2012-2021 period” and increase the number of uninsured by 33 million, “leaving a total of about 57 million nonelderly people” without coverage.

Republicans dismissed the initial estimate by claiming that the deficit reductions from the health law were the result of budget gimmickry and thus, they argued, the deficit increases from repeal are similarly unbelievable. As Sen. John McCain (R-AZ) described it on the Senate floor in early February, “So what I’m saying is, garbage in, garbage out.”

But for those who don’t dismiss uncomfortable reports — after repeatedly praising other more favorable scores from the agency — the new CBO offers its own bit of irony. That is, by repealing the coverage provisions in the Affordable Care Act, the Republicans may be lowering the government’s commitment to health care over the first 10 years, but because they’re also going after the cost control measures in the law (and growing Medicare outlays), they are increasing the government’s involvement over the next 10:

CBO projects that enacting H.R. 2 would reduce the “federal budgetary commitment to health care” by $464 billion over the 2012–2021 period…The net reduction in that commitment would be driven primarily by repeal of the coverage expansions….However, CBO projects that enactment of H.R. 2 would increase the federal budgetary commitment to health care in the decade following the 10-year projection period. The estimated effect in later years differs from that in the first decade because the effects of those provisions that would tend to increase the federal budgetary commitment to health care (such as the increase in Medicare spending and the repeal of the excise tax on insurance policies with relatively high premiums) would grow faster than the effects of provisions that would tend to decrease it (primarily the repeal of the coverage expansions). As with the longer-term estimate of overall budgetary effects, that projection incorporates an assumption that the provisions of current law would otherwise remain unchanged throughout the next two decades.

In other words, Republicans may think they’re preventing a so-called “government takeover” of health care by repealing the law, when in fact they’re putting one off for another 10 years.

Moments ago, the House of Representatives passed four different amendments to the continuing resolution that would deny funding to the Affordable Care Act or the employees who are currently implementing the law, jeopardizing the law’s consumer protections and potentially leading to the loss of some 500 federal jobs. Below are the relevant amendments:

- REHBERG #575 – prohibits funds in the bill from being paid to any employee, officer, contractor, or grantee of any department or agency funded by the Labor, Health and Human Services, and Education, and Related Agencies portion of the bill to implement the provisions of ObamaCare. Passed: 239-187
 
- KING (IA) #267 – prohibits the use of funds in the bill from being used to carry out the provisions of ObamaCare. Passed: 241-187
 
- KING (IA) #268 – prohibits the use of funds in the bill from being used to pay the salary of any officer or employee of any federal department or agency with respect to carrying out the provisions of ObamaCare. Passed: 237-191
 
- EMERSON #83 – prohibits the use of funds in the bill from being used by the Internal Revenue Service to implement the individual mandate and penalties and reporting requirements of ObamaCare. Passed: 256-182

The amendments only tackle the discretionary spending for FY 2011, while leaving the mandatory funding for programs like high risk pools, the exchanges, small business tax credits, and other benefits largely intact. Since many of the law’s most popular consumer protections have yet to be finalized, the amendments may also endanger such popular provisions as the prohibition against discriminating against children with pre-existing conditions and allowing children to remain on their parents’ plan until age 26. During the debate on the floor, Rep. Steve King (R-IA) attempted to offer an amendment that would defund the automatic spending, but it was not included because of a procedural technicality.

Should these amendments survive in the Senate, the Department of Health and Human Services would also have to stretch its $1 billion implementation fund to maintain the hundreds of employees responsible for drafting regulations and enforcing the ACA — an impossible task given the fund’s other obligations. Of the more than 500 employees responsible for implementing the law, an untold number would find themselves without a job and the law itself would be seriously hampered, further undermining House Speaker John Beohner’s claim of, “I don’t want anyone to lose their job, whether they’re a federal employee or not.”

A recent CBS News Poll found that a majority of Americans disapprove of the GOP’s tactics “and many aren’t sure of its impact on the health care system.” According to the poll, 55 percent “disapprove of the plan to cut off funding to the new health care reforms, and just 35 percent approve. Among Republicans, approval rises to 57 percent. Forty-nine percent of independents disapprove, and 38 percent approve.”

Republicans have been all over the map on which parts of the Affordable Care Act they preserve and which they want to repeal, but if we consider the bill House Speaker John Boehner (R-OH) offered in 2009 as a blueprint for where the party stands on health care, then we can assume that most Republicans support allowing children to stay on their parents’ health care plan well into their 20s. The reform is designed to ensure that college-aged students have a sound coverage option.

Rep. Steve King (R-IA) has previously spoken out against this provision and now Luke Russert is reporting that Rep. Jack Kingston (R-GA) would also oppose the measure:

Talking on the House floor today about the provision that allows children to stay on their parent’s health-care plan until they’re 26 years old, Kingston said (paraphrasing here, but pretty close):

“I have four kids under the age of 26. I have raised them to be responsible. The average age of soldiers in Vietnam was 19. World War II probably the same. I have raised my kids to be responsible, to get health care at 21. Kids don’t need to be running home to mommy and daddy until they’re 26 for healthcare.”

Back in January, King similarly explained that he opposed the provision because it could permit some younger members of Congress to “still be on mommy and daddy’s health insurance policy” (rather than the government-funded care he receives) when they’re elected to Congress.

All this means that if Republicans want to include this provision in their replacement legislation (should they ever produce one) they might have quite the fight on their hands from more conservative members who are already benefiting from government sponsored coverage but refuse to extend similar benefits to all Americans.

A recent New York Times/CBS poll found that an untraceable percentage of voters want to repeal the 26 year old provision, suggesting that many are using it to extend insurance to their children.

Last night, the House of Representatives spent nearly three hours debating Rep. Mike Pence’s (R-IN) amendment to strip $327 million from Planned Parenthood and its affiliates, raising concerns from some Democrats that the measure may be unconstitutional. Pence’s measure would specifically bar Planned Parenthood from receiving any Title X funds, even though the Republican continuing resolution (CR) would eliminate the entire Title X program.

Democrats argued that defunding Planned Parenthood would significantly hamper access to health care for lower-income Americans who depend on the organization for primary care services and insisted that the existing prohibitions against abortion funding already ensure that that taxpayer dollars don’t pay for abortions. Rep. Jerrold Nadler (D-NY) went a step further, arguing that the amendment was unconstitutional and would be struck down by the courts. He quoted from the Constitution “in making his point that the Pence amendment would amount to a ‘bill of attainder’ because it would seek to punish Planned Parenthood for conducting activities that supporters of the measure disapprove of”:

NADLER: A bill that punishes someone, some person or organization, who is named or easily identifiable by legislative action is called a bill of attainder. That’s the definition of a bill of attainder. A legislative enacted penalty, in this case no funding, directed at an identifiable person or organization to punish them for something. Article I Section 9 says “no bill of attainder or ex post facto should be passed.” Fundamental foundation of constitutional law. If Planned Parenthood or anyone else is doing terrible things and ought to be punished, that’s up to the courts. [...]

I challenge anyone to say how this isn’t’ a bill of attainder. The definition of a bill of attainder is a legislative enacted penalty aimed at some person or organization that’s identifiable, named right here, for some reason, that they’ve done various things fund abortions, done illegal things or otherwise. So in addition to all these other problems, this amendment is unconstitutional and will be struck down by the courts if it should pass.

Watch it:

Rep. Louie Gohmert (R-TX) tried to pushed back against Nadler’s “bill of attainder” argument, before launching into a tirade against the phantom federal abortion funding for Planned Parenthood and the Affordable Care Act (neither of which spend federal funds on abortion services).

The Associated Press is reporting that Alaska Governor Sean Parnell (R) — who is the only governor not to apply for a federal Health Insurance Exchange Planning Grant, which funds the preparations for an online exchange — will not enact the federal health care overhaul “after a judge in Florida struck down the law as unconstitutional“:

Parnell, who sought the advice of his attorney general amid concerns implementing the law would violate his oath of office, told the Juneau Chamber of Commerce the state would pursue lawful, market-based solutions to making insurance affordable and accessible to Alaskans.

He said the Florida judge’s ruling is the law of the land, as it pertains to Alaska, barring implementation of the federal law here. He said the state will pursue options of its own instead.

Failing to implement the law or establish an exchange would require the federal government to step in and offer Alaskans coverage through a federal-based insurance exchange. Funding for a federal exchange — which will cost $235.9 million — is part of the administration’s FY 2012 budget request.

Parnell is the only anti-reform governor who is using his opposition to the Affordable Care Act to prevent his state from applying for federal grants to help regulators police unreasonable insurance health premiums, plan for the exchanges, and most other grants (Alaskan businesses and seniors are taking advantage of the law, however). A number of the other 25 states that are part of the multi-state challenge have sent back a portion of the federal grants, but all have accepted a far greater portion of the early benefits of reform.

Alaska, meanwhile, is suffering from a fairly severe health care crisis and would stand to benefit from the aforementioned grants to employers and regulators. Nineteen percent of Alaskans and 12 percent of children are without insurance coverage and the state’s health care costs tend to grow faster than the national average.

House Speaker John Boehner (R-OH) is claiming that he doesn’t “want anyone to lose their job.” My colleague Ellen-Marie Whelan has produced this interactive estimating how many jobs would be lost under the GOP’s continuing resolution to slash community health centers (CHC). Republicans are proposing to cut $1 billion from the FY 2010 baseline funding, which would translate into a loss of more than 178,000 jobs. Boehner’s home state of Ohio would lose 3,125 jobs:

What kind of jobs? First, and most obviously, these health centers directly employ people in their communities, including doctors, nurses, other health professionals, and key entry-level jobs. The centers provide training on-site and other community-based opportunities. And they purchase goods and services from local businesses and expand and build new locations. All of these activities create additional jobs.

Look (and click here for the interactive):

Whelan estimates that defunding Affordable Care Act (and its $11 billion for community health centers) — the GOP’s other priority — would mean a loss of even more economic activity and eliminate nearly 300,000 jobs in 2015. (See that map here.)

Ironically, Republicans have long supported CHCs as a means of expanding coverage. Former President George W. Bush doubled U.S. financing for community health centers and Appropriations Committee Chairman Hal Rogers (R-KY) — who put together the Republican CR — has described CHCs as “essential,” regularly touting new federal funds for CHCs in his district.

Rep. Denny Rehberg (R-MT) has offered an amendment to the continuing resolution that would destabilize federal health reform by blocking any spending that can be used for “any employee, officer, contractor, or grantee of any department or agency” funded by the Affordable Care Act. The measure would “block about $41 million in spending to implement the federal health-reform law through September” and is expected to be introduced on the floor later today. Here is the full text:

None of the funds made available by this Act may be used for any employee, officer, contractor, or grantee of any department or agency funded by title VIII of division B of this Act to implement the provisions of Public Law 111-148 or title I or subtitle B of title II of Public Law 111–152.

Rather than defunding any specific provisions, Rehberg is going after the discretionary funds that are needed to implement it. Should the House adopt this amendment and it survive in the Senate, the Department of Health and Human Services would have to stretch its $1 billion implementation fund to maintain the hundreds of employees responsible for drafting regulations and maintaining the ACA — an impossible task given the fund’s other obligations.

Of the more than 500 employees responsible for implementing the law, an untold number would find themselves without a job and the law itself would be seriously hampered. Not only would implementation screech to a halt, but many of the existing regulations — that have not yet been finalized — would also be jeopardized. Rehberg is effectively deregulating the health care sector by defunding the regulators and thereby protecting himself from the charge that he’s directly rescinding some of the laws most popular consumer protections.

Meanwhile, House Speaker John Boehner (R-OH) said today that he didn’t want anyone to lose their job. “I don’t want anyone to lose their job, whether they’re a federal employee or not,” Boehner said at his weekly press conference. “But come on, we’re broke.”

This morning, Rep. Dave Reichert (R-WA) aggressively pressed Health and Human Services Secretary Kathleen Sebelius on whether the Affordable Care Act would allow individuals to keep the coverage they have if they like it and argued that HHS regulations would lead Americans to lose their current plans:

REICHERT: Do you still believe that statement? In this bill you’re able to keep your health care plan and your doctor if you like it. Is that an accurate statement? Just a yes or no?

SEBELIUS: Congressman, it’s accurate to the point that we are not tampering with the existing system. Employers make choices of plan changes and doctor changes that right now, employers don’t control.

REICHERT: Madam Secretary, please. My time is limited. Here is the problem, people in America just want to know. [...]

SEBELIUS: Employers choose care for 180 million Americans…

REICHERT: Madam Secretary, please. If the President said there is language in the bill that runs contrary to that promise…will you work to change the language in the bill to insure that the American people can keep their doctor and keep their health plan.

SEBELIUS: Congressman, I would be happy to work with you on that. But as you know, we don’t order doctors to take Medicare patients…or take Medicaid patients. We don’t order employers to keep the same the same plan with the same network. That has never been part of the promise.

Watch it:

The problem with President Obama’s statement that “if you like the coverage you have you can keep it” is that it lends itself to a very literal interpretation — the suggestion that health care plans won’t change, rather than the correct interpretation that health reform won’t force you to enroll in a new plan (so long as your existing plan offers comprehensive benefits).

The administration hopes to allow consumers to keep their existing plan, while also ensuring that there are some basic patient protections built into these plans. Last year, HHS unveiled regulations to exempt health insurance plans in existence before March 23, 2010 — the day the Affordable Care Act became law — from many of the new regulations, benefits standards and consumer protections that new plans now have to abide by. But the exclusion comes with conditions. If the plans or employers make changes that undermine the spirit of the health law and significantly burden enrollees with lower benefits and increased costs, they have to come into compliance with all the consumer protections. (In November of last year, HHS loosened the regulations to help employers hang on to their grandfather protections longer.)

HHS estimates that a good percentage of small business plans and policies in the individual market will lose their grandfather status and look for cheaper coverage that already meets the new requirements. And that’s a good thing. The grandfather regulations serve as a bridge to gradually move everyone into plans that have the kind of consumer protections that Americans say they want. By 2014 almost all plans will be in full compliance.

In the same way that the government requires automakers to meet certain safety standards and design specifications, insurance issuers and employers will have to abide by new benefit and consumer protection minimums. They shield consumers from drastic benefit cuts or cost shifts. And by discouraging insurers and employers from making these changes, the regulations in the law help you like what you have rather than just being stuck with your existing plan.

In testimony before the House Judiciary Committee today, former acting Solicitor General Walter Dellinger predicted not only that the Supreme Court will reject the meritless lawsuits challenging the Affordable Care Act, but also that the opinion will be written by conservative Chief Justice John Roberts:

I would wager that Chief Justice Roberts writes the opinion upholding the law. . . . He won’t want to say that the market alternatives are ruled out and you can only use monolithic government alternatives, he’s going to write an opinion to say that this is upheld—not because Congress can use its commerce power to impose affirmative obligations willy nilly to purchase products—but it [will be] upheld because of all the reasons we’ve said about the central role it plays in avoiding the displacement of costs onto other citizens.

Watch it:

As Dellinger points out, the lawsuits attacking the ACA do not question that Congress has the power to create entirely-government run health programs such as Medicare, so a Supreme Court decision striking down President Obama’s key accomplishment would have the strange result of requiring national leaders to reform the health system without allowing them to rely on this exclusively market-driven solution. That seems like a odd line for a corporate conservative like Roberts to draw.

Moreover, Roberts has shown little appetite for the radical vision of states rights which drives the challenges to health reform. In the Court’s most important federalism decision since he joined the Court, United States v. Comstock, Roberts joined the Court’s four moderates in refusing to roll back Congress’ power to ensure that federal laws function effectively. Roberts is also perfectly aware of the fact that radical states rights doctrines cut both ways, and many of the same tenther arguments that would kill progressives’ ability to fix the U.S. health system would also cut back on Roberts and other conservatives’ power to give corporations broad immunity from state law.

There are, of course, no good legal arguments against the Affordable Care Act. As Adam Serwer points out, however, there are political arguments against it. In a post Bush v. Gore era, there is always the risk that Roberts and his fellow conservatives will simply ignore everything that has come before them and dream up some tortured reason to strike down the law.

But there is good reason to believe that a purely cynical John Roberts would vote to uphold the ACA entirely because it will enhance his power to do the right-wing’s bidding. Most political commentators do not distinguish between corporate conservatives such as Roberts and tenther conservatives such as Justice Thomas, even though the two justices sometimes wind up on opposite sides of major constitutional cases. So if Roberts were to reject the ridiculous legal arguments against the ACA, such a vote would immediately be held up as proof that the Court is not the kneejerk servant of wealthy interest groups that Roberts has fought so hard to transform it into.

For years after Roberts did nothing more than turn his back on legal claims that border on frivolous, his corporate backers could cite his Affordable Care Act decision as proof that he is an honest and non-ideological judge. Roberts would then eagerly wield this political cover to enact the one agenda he cares most about — shielding powerful corporations from the law.

In a memo to House Republicans marked “confidential”, the Tea Party group FreedomWorks praises the GOP for passing health care repeal legislation in the House, but argues that the party must now turn its attention on the ‘repeal’ part of its agenda to build greater support for rescinding the law. In a reversal of past strategy which urged members to hold votes on specific provisions of the law, the Dick Armey-led group is now asking Republicans to “improve” the law “so long as the improvements don’t significantly increase its support.” Similarly, the group warns the GOP against collaborating with health care groups to eliminate that IPAB board or other provisions “unless the affected industries endorse full repeal.” A more effective strategy is to “Highlight the special interest deals and corrupt bargains. Scrutinize the hundreds of waivers and thousands of pages of regulations issuing from HHS. Publicize the premium cost increases and coverage losses. Keep Dr. Berwick talking,” the memo says.

Republicans should reject some of the most popular elements of reform and offer legislation that embraces the existing individual market, Armey writes. He dismisses reforms like “the unnecessary small-business tax credits” and describes caps on annual limits, the ban on lifetime limits, the adult children coverage provision, and the caps on insurance company profits as “cost insurance mandates.” The memo argues that “[b]anning preex condition clauses is counterproductive, because it raises premiums and causes coverage to be dropped.” “It’s also unnecessary because federal and state laws already offer significant protections,” it says, ignoring the fact that more than 40 states and the District of Columbia don’t have laws protecting individuals with pre-existing conditions from being denied coverage.

Instead, Republicans must focus on expanding the unregulated individual health insurance market, without paying too much attention to “how many people are covered,” the memo states. It also encourages the GOP to embrace the health care portions of Rep. Paul Ryan’s (R-WI) Roadmap:

True insurance, which exists to help people pool risks, should be kept distinct in our minds from group “insurance,” which is really a form of pre-paid benefits. With true (individual) insurance, prices need to vary according to risk and purchasers need to plan ahead. You can’t buy fire insurance after your house has burned down. By contrast, pre-paid benefits are generally open to everyone in the group (guaranteed issue) and the price is the same for everyone, regardless of the amount of risk each person brings to the plan (community rating). Many states and Obamacare try to regulate true insurance as if it were pre-paid benefits. That’s misguided in the extreme. When government does that, it merely drives up the costs of the insurance or causes it to become unavailable. Therefore, we should always favor policies that lower the costs of true insurance and increase the number of people who can obtain it. We should grow the individual market.

Not only will this replacement legislation face overwhelming public opposition — polls have consistently shown that Americans approve of the consumer protection provisions in the law — but it would also take away the means by which individuals with chronic conditions can find affordable insurance. FreedomWorks suggests that the 129 million Americans with pre-existing conditions should purchase insurance in state-based high-risk pools, but existing pools have failed to attract enough beneficiaries because the cost of covering large groups of sick individuals is simply too great.

FreedomWorks’ solution to transform Medicare into a voucher program and give states block grants to fund Medicaid, would similarly devastate access to coverage. Under the voucher scheme, seniors would have to pay more for comparable coverage, while states received Medicaid block grants — a fixed dollar amount annually that would fall below current growth — would either have to (as the CBO put it) “provide less extensive coverage or to pay a larger share of the program’s total costs.”

Read the full memo HERE.