Rasmussen has a new poll out that on its face would suggest that 54% of Americans support Sens. Lindsey Graham’s (R-SC) and John Barrasso’s proposal to allow states to opt out of the individual mandate, but I suspect that the response would be far different if respondents were informed of the consequences of abandoning the program or given another option. Rasmussen asks and finds:

- Should individual states have the right to opt out of the entire health care plan?
54% say they should.
30% say they should not.
15% are unsure.

- Should individual states have the right to opt out of portions of the plan that they disagree with?
54% say they should.
31% say they should not.
15% are undecided.

What’s happening here is the same phenomenon that we’ve seen in health care polls past. When voters are asked do you support the health law, a majority say they do not. But when they’re questioned on the law’s specifics — do you support the ban against pre-existing conditions, keeping children on their parents’ plan until 26 years of age, and closing the Medicare Part D doughnut hole — support greatly increases.

Consequently, if voters were told that opting out of the mandate would more than likely undermine the insurance market reforms, the number of respondents who favor leaving the plan would take a nose dive. The poll also has two key omissions (as far as I, a non-platinum subscriber to Rasmussen can tell): (1) it leaves out the fact that an opt out provision ALREADY exists in the law, but requires states to increase coverage and does not kick in until 2017 and (2) does not ask about a bipartisan proposal that would allow states to opt out of the mandate in 2014 if they can figure out a better way to expand coverage and lower costs.

Last night, I expressed my frustration at Democratic lawmakers flirting with alternatives to the individual mandate. This morning, that turned to anger after I saw Brian Beutler’s report on Rep. Peter Defazio’s (D-OR) proposal:

Under his plan, a person opting out “must file an ‘affidavit of personal responsibility’ with the state exchange. Such a filing will waive their rights to: 1) Enroll in a health insurance exchange; 2) Enroll in Medicaid if otherwise made eligible; and 3) Discharge health care related debt under Chapter 7 bankruptcy law,” DeFazio wrote in a letter to colleagues Tuesday.

Under his plan, if a person wants back into the system, they’d need to buy insurance on their own, out of pocket, for five years. The idea here, and with other, similar plans, is to moot one of the constitutional complaints about the mandate — that it penalizes “inactivity.”

The question is whether tweaks like this will create “adverse selection” in the insurance market. That’s what would happen if the people who opt out are broadly healthier than the people who don’t, and it would cause premiums to rise considerably.

Adverse selection — the idea that young people would simply opt out for a period of five years, leaving the risk pool full of sicker individuals who are more expensive to cover — is just one problem with this plan. The other very obvious shortfall is that if the individual does become sick during the five year period, he or she may have a hard time affording health insurance coverage and will pass on the costs of care to other payers in the health care system.

Again, this is not the time for Democrats to be publicly exploring alternatives to the mandate. Why add more weight to Judge Vinson’s decision finding the mandate unconstitutional? (And for the reasons I outline here). This time would be better spent reminding the public of the GOP’s past support for the policy and how the law benefits seniors and other key demographics.

Yesterday, as Virginia Attorney General Ken Cuccinelli announced he will seek immediate review by the U.S. Supreme Court “of the state’s constitutional challenge to the federal health-care overhaul,” the Virginia General Assembly passed HB 2434, “A BILL to state the intent of the General Assembly to create and operate a health benefits exchange.”

The measure, which seeks to implement one of the central tenets of the law Cuccinelli is challenging, passed the Assembly overwhelmingly in a vote of 95-3. Among other things, it instructs the Governor to present recommendations “to the General Assembly by October 1, 2011″ for how best to structure the exchange:

Be it enacted by the General Assembly of Virginia:

1. § 1. That it is the intent of the General Assembly that the Commonwealth create and operate its own health benefits exchange or exchanges, hereafter referred to collectively as the “Virginia Exchange,” to preserve and enhance competition in the health insurance market. The purpose of the Virginia Exchange shall be to facilitate the purchase and sale of qualified health plans in the individual market and to assist qualified small employers in facilitating the enrollment of their employees in qualified health plans offered in the small group market. To accomplish this purpose, the Virginia Exchange shall, at a minimum, meet the relevant requirements of the Patient Protection and Affordable Care Act (P.L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (P.L. 111-152) (collectively referred to as the “Affordable Care Act”), regarding the establishment of an American Health Benefit Exchange or Small Business Health Options Program by the prescribed deadline imposed by the Affordable Care Act in order to avoid development and implementation of a federal exchange in the Commonwealth.

Indeed, most of the states that are suing the federal government over the law are also implementing the measure and accepting federal grants, but the rift between the implementation process and the political repeal theater is most striking in Virginia given that state’s eagerness to challenge the law.

Virginia has been a bit schizophrenic towards the law for some time. After Judge Henry Hudson sided with Cuccinelli in December, “a state panel appointed by his own governor, Bob McDonnell found that ‘health reform is worth doing‘ and urged swift implementation of the bill, even as legal challenges against it proceed.”

Following Judge Roger Vinson’s ruling against the Affordable Care Act, Alaska Gov. Sean Parnell (R) has “asked his attorney general to advise him on whether implementing and enforcing the federal health care overhaul would put Parnell in violation of his oath of office,” toeing a line several conservatives have advanced in the wake of Monday’s ruling:

Parnell told reporters that he took an oath to support and defend the constitutions of the United States and Alaska. While the Republican governor concedes the issue is expected to be decided by the U.S. Supreme Court, he said he has a duty to uphold the law and wants Attorney General John J. Burns to advise on what that duty is after the Florida ruling.

“I’m caught between a federal government that says, ‘You must pursue this, you must pursue this,’ and I have the duty to uphold the rule of law,” he said. [...]

Before the judge’s ruling, Parnell said he didn’t “out of hand” reject all provisions of the law. He said he had pledged to review each aspect and deadline individually.

But he said he did not pursue “anything” related to the individual insurance mandate, which he said would have undermined the state’s position in the lawsuit and his belief that the provision is unconstitutional.

“And now, of course, the judge has said that that individual mandate is so closely tied with almost every provision,” he said. “So, again, I’m asking, I need some clarification on what the effect of the lower court’s ruling is.”

It’s surprising to see Parnell cower to the ruling of a single, unelected, district judge from the main land, but then again, the entire Republican response to Monday’s verdict has been designed to magnify and dramatize the importance of Vinson’s decision. Begin acting as if the ruling has any real legal consequences for the implementation of the law and you’ll convince the public that the question of constitutionality has been all but settled. It’s all about shifting perceptions.

But the problem for states like Alaska and Florida is that despite all their political posturing, this is a single district court decision that is in direct conflict with two other district court rulings upholding the constitutionality of the law. Vinson did not issue an injunction against implementation and found that just two state — Utah and Idaho — had any standing to challenge the law. Dismissing these facts may play well politically, but practically it’s slowing down the implementation process and hampering state flexibility (since their refusal to implement the measure will cause the federal government to intervene).

During Justice Kagan’s confirmation hearings, conservatives falsely claimed that she was required to recuse herself from the pending health care litigation because of her previous role in the Department of Justice. Earlier this week, Sen. Orrin Hatch (R-UT) attempted to revive this absurd claim:

I would think that Kagan, who was the Solicitor General at the time [the Affordable Care Act] was all done, probably should recuse herself. … I personally think that she should recuse herself because I’m sure that she participated in discussions at the White House [about the health care litigation].

Watch it:

As the Wonk Room explained the last time opponents of health reform tried to pressure Kagan into an unwarranted recusal, Kagan is under no obligation whatsoever to recuse:

[J]udges must recuse themselves from cases where they “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy” — but this language does not say what the WSJ wants it to say.

To have “participated” in a “particular case in controversy,” a judge must have been a lawyer, adviser or witness in the exact same lawsuit that is now before their court. Because none of the health care cases currently pending in federal court have been appealed, Kagan would not have done any work on those specific cases. Normally, the Solicitor General first becomes involved in federal litigation at the appellate level, if at all.

Indeed, Kagan confirmed that she had no involvement whatsoever in the health care litigation during her confirmation testimony — a testimony she gave under oath. So when Hatch says the he is “sure she participated” in the White House’s discussion of the health care litigation, he is not just revealing that he doesn’t know what the Solicitor General’s actual job is — he is also accusing a sitting Supreme Court Justice of committing perjury without any evidence to that effect. If Hatch actually has evidence that Justice Kagan is a felon, then he should produce it. Otherwise he would do well to avoid such slanderous accusations.

Ironically, while there is absolutely no reason for Kagan to recuse, there is a recusal issue with one of the Court’s conservativs. After progressive Judge Stephen Reinhardt was assigned to the appellate panel hearing a challenge to anti-gay Proposition 8, supporters of the anti-gay law called for Reinhardt to recuse because his wife’s organization advocates against Prop 8. But, of course Supreme Court spouse Ginni Thomas used to lead a Tea Party group called Liberty Central which vigorously opposes the Affordable Care Act. So by the right’s very same arguments, Justice Thomas must drop out of the health care litigation.