Sen. Olympia Snowe (R-ME) — who is up for re-election in 2012 — has issued a press release announcing that she is co-sponsoring an amendment “to repeal the employer mandate imposed by the new health reform law”:

U.S. Senator Olympia J. Snowe (R-Maine) cosponsored legislation today to repeal the employer mandate imposed by the new health reform law. Senator Snowe, who opposes this mandate requiring employers to offer health insurance to their employees, filed an amendment during Senate consideration of the health care legislation to strike the provision altogether. Additionally, Senator Snowe is a cosponsor of legislation to fully repeal the health care law.

From the beginning, I strongly opposed this mandate, which will require small businesses with more than 50 workers to offer health insurance as a workplace benefit – or be subject to a fine of up to $2,000 penalty per employee. Worse still, the employer mandate captures part-time workers and seasonal workers who are employed for more than 120 days in determining whether a firm will be subject to the mandate.

The “mandate” Snowe is referring to is actually a “free rider” compromise provision that she helped broker as a member of the so-called ‘Gang of 6.’ Unlike the pay or play employer requirement that was part of earlier drafts of the law it doesn’t “require small businesses with more than 50 workers” to offer coverage. In fact that’s why Snowe eventually voted for the measure in the Senate Finance Committee.

As the National Journal reported on July 28, 2009, Snowe “emerged from bipartisan talks Monday confirming the employer mandate and, as expected, a public option would not make the final bill.” “We still have various options on the table, but we obviously are providing incentives in that regard,” Snowe said. “We don’t mandate employer coverage.” What the Finance Committee offered instead was a provision that did not require employers to provide insurance. However, by 2014, businesses with more than 50 employees that choose not to offer coverage, but have at least one full- time employee who receives a federal tax credit through an exchange, must compensate the government.

Progressives vehemently opposed the measure. As the Washington Post’s Steve Pearlstein explained at the time, “the provision would have the perverse effect of encouraging employers to fire, or not to hire, low-wage workers with children or spouses who are unemployed.” “Republican Olympia Snowe is said to be particularly enamored of this idea. I’d bet a two-pound lobster and bowl of Maine’s best chowder that she can’t find a labor economist back home who thinks this is a good policy,” he added. Sens. John Kerry (D-MA) and Chuck Schumer (D-NY) unsuccessfully offered an amendment to replace the free-rider provision with an employer mandate and the Snowe-crafted provision made its way into section 1513 of the Affordable Care Act.

The Republican governors appearing before the Energy and Commerce Committee this morning rejected calls for opting out of the state-federal Medicaid program, an idea initially floated by the Heritage Foundation and temporarily embraced by Texas Governor Rick Perry (R). “I can’t imagine Mississippi opting out of Medicaid. We’re a poor state and it’s an important program,” Gov. Haley Barbour (R-MS) said. Gov. Gary Herbert (UT) agreed, “we have no plans to opt out of Medicaid,” he added.

The two Republican witnesses — Massachusetts Governor Deval Patrick was the sole Democrat on the panel — also largely dismissed President Obama’s endorsement of an amendment that would allow states to meet certain coverage and cost benchmarks, suggesting that the measure provides faux flexibility. Bot Barbour and Herbert complained that they would still have to comply with the yet-to-be defined minimum benefits package requirement:

BARBOUR: “The devil is in the details, but the thing that concerns me is that the things that are in the statute, we’re told, the states would still have to do….and if we get saddled with a standard benefits package like Massachusetts, that’s why our employers will drop coverage. Because their premiums will skyrocket. So if it doesn’t give us relief from that or similar things, it’s not much help.”

HERBERT: “How flexible is flexible? It’s clearly not absolute flexibility. This is not a block grant, do as you see fit. It is a maintenance of effort still required. The essential benefits package stays the same, the eligibility for Medicaid still is there. So if you get the outcomes that we say to you state, then we got flexibility and that really is not flexibility.”

As Politico’s Sarah Kliff points out, Herbert was far more receptive to the amendment yesterday, telling Kliff that the president’s speech was a “step in the right direction.” “I’m hopeful it’s going to lead better discussions of understanding about flexibility,” he said yesterday.

His positioned hardened this morning, but it’s no less accurate. Under the law, states can apply for a whole host of waivers from the Medicaid program and Part I of subtitle D of the Affordable Care Act, the establishment of a qualified health plan — which includes the essential health benefits requirements.

The larger point here, however, is that if conservative lawmakers really had a plan to expand access to insurance or lower health care costs, they would presumably be proudly touting these ideas and if they didn’t fall within the confines of the innovation mandate, the governors would be requesting waivers from the federal government (as some progressive states are now doing in an effort to enact single-payer health care reform). But during today’s hearing Republicans paid lip service to the importance of flexibility but did not detail what they planned to do with that new found freedom or how those ideas can meet the coverage or cost benchmarks set forward in the Affordable Care Act.

The White House has portrayed President Obama’s endorsement of a bipartisan proposal that would allow states to opt out of the individual mandate in 2014 as a matter of “state flexibility” and sees the legislation as an attempt to push back against the GOP’s claims of a “government takeover of health care.” I argued yesterday, that by endorsing the proposal, Obama can also challenge Republican governors who oppose his method of reform to prove that their conservative solutions would go as far in expanding health care coverage and reducing costs.

But Sen. Mary Landrieu (D-LA), who co-sponsored the amendment along with Sens. Ron Wyden (D-OR) and Scott Brown (R-MA), is taking this message a step further — co-opting the GOP’s talking points on reform to argue that the amendment is “the ultimate repeal and replace”:

But Landrieu said that her bill was, in effect, “the ultimate repeal and replace,” leaving it to each state that is unhappy with the design of the federal law “to replace it with whatever each state comes up with.”

“The only string (attached) is to cover people that work,” said Landrieu, who said the fundamental premise of reform is that working people should not have to face bankruptcy to pay their medical bills.

“Does (Gov. Jindal) think that people should work 50, 60, sometimes 70 hours a week and not have access to health care?” asked Landrieu, who said the governor needs to bring his expertise to bear to come up with a plan that fits Louisiana’s needs.

“If the governor doesn’t like the health-care bill, the beauty of this proposal is that you can create your own, but it’s not responsible and not right to just run away from your responsibilities,” said Landrieu, noting that “anybody can balance a budget if you want people to die in the streets and if you want people to stay out of school.” The mark of a skillful governor, she said, would be crafting a balanced budget that still “finds a way to provide health care and provide education.”

It’s highly unlikely that the GOP will go along with the measure, partly because the amendment is now endorsed by Obama and partly because it’s difficult to come up with an alternative that meets the coverage and cost benchmarks of the Affordable Care Act (with the kind of health care initiatives Republicans have been proposing). But forcing Republicans to step away from the rhetoric of reform and lay out the actual consequences of their policies for the uninsured would go a long way towards sorting out the wheat from the chaff.

Following up on Igor Volsky’s post about the Affordable Care Act’s provision enabling states to opt out of certain parts of the law beginning in 2017, it’s worth noting that these waivers provide yet another reason why the ACA easily survives constitutional scrutiny.

In a case called United States v. Comstock, the Supreme Court considered an Act of Congress that had a much more dubious claim to constitutionality than the ACA — a law permitting federal officials to detain “sexually dangerous” inmates long after they had completed their original sentences. Significantly, this law was supported by none of the powerful constitutional arguments that support the ACA. The law does not regulate the national economy, and thus could not fit within Congress’ robust power to regulate the national economy. The law does not raise revenues, and thus does not fit within Congress’ taxing power.  And — unlike the ACA — the law in Comstock was in no way necessary to ensure that another federal law functioned properly, and thus was more difficult to fit within Congress’ “necessary and proper” power.

Nevertheless, the Court upheld the law. In doing so, the justices explained that, in marginal cases, a law stands on stronger constitutional footing when it includes a provision that “properly accounts for state interests“:

Nor does this statute invade state sovereignty or otherwise improperly limit the scope of “powers that remain with the States.” To the contrary, it requires accommodation of state interests: The Attorney General must inform the State in which the federal prisoner “is domiciled or was tried” that he is detaining someone with respect to whom those States may wish to assert their authority, and he must encourage those States to assume custody of the individual. He must also immediately “release” that person “to the appropriate official of” either State “if such State will assume [such] responsibility.”  And either State has the right, at any time, to assert its authority over the individual, which will prompt the individual’s immediate transfer to State custody. Respondents contend that the States are nonetheless “powerless to prevent the detention of their citizens under §4248, even if detention is contrary to the States’ policy choices.” But that is not the most natural reading of the statute, and the Solicitor General acknowledges that “the Federal Government would have no appropriate role” with respect to an individual covered by the statute once “the transfer to State responsibility and State control has occurred.”

Of course, the lawsuits against the Affordable Care Act are not marginal cases — the ACA is unquestionably constitutional, and would be so even if it contained no provisions allowing state waivers at all. Nevertheless, Congress’ decision to allow such waivers provides yet another thumb on the scale in favor of the ACA’s constitutionality. Like the law in Comstock, the ACA goes out of its way to accommodate state interests.