Good news or bad news for President Buckpasser?
Alternate headline: “White House to begin referring to ObamaCare as ‘KreidlerCare.'”
Just hours after President Obama announced changes to his health care law to give insurance companies the option to keep offering consumers plans that would otherwise be canceled, Washington state Insurance Commissioner Mike Kreidler says those changes will not be allowed in our state.
Kreidler says Thursday he has “serious concerns” about how Obama’s proposal would be implemented and its potential impact on the overall stability of the state’s health insurance market.
“I do not believe his proposal is a good deal for the state of Washington,” Kreidler said in a statement announcing his decision. “In the interest of keeping the consumer protections, we have enacted and ensuring that we keep health insurance costs down for all consumers, we are staying the course. We will not be allowing insurance companies to extend their policies. I believe this is in the best interest of the health insurance market in Washington.”
On the one hand, Obama will take any fall guy he can get for mass cancellations as long as it’s not him. If Kreidler wants to be the bad guy responsible for telling people they can’t keep their plan after all, fine. In fact, like I said in this post, O would surely prefer that plans aren’t un-canceled. What Kreidler said here about the stability of the insurance market is true and Obama knows it; if insurers start bringing back old plans, the prognosis for ObamaCare will turn even poorer than it already is. That’s why O adopted a version of the Republican plan, which would give insurers the option to resurrect canceled plans, and not the Democratic one, which would require them to do it. He doesn’t want it to happen, he only wants the public to think that he does.
On the other hand, O would much, much prefer to have the insurance industry as his archenemy in all this, not state insurance regulators. It’s easy to demagogue the former as cutthroat and callous about the hardships of canceling someone’s insurance. It’s harder to do it to the latter, especially when Kreidler’s talking up the same type of consumer protections that Obama himself is ostensibly concerned with at the federal level. Essentially, if Obama gets into a pissing contest with state regulators over this instead of the industry, he risks coming off as a comparatively feckless, short-sighted lawmaker — which he is — rather than the hero of the middle class, gloriously restoring them to the plans they knew and loved, that he wants to be. O doesn’t want plans un-canceled, he just wants an unpopular entity like insurers to take the fall. Kreidler’s preventing that. What now?
By the way, to circle back to a question I posed earlier, is Obama’s unilateral “fix” for mass cancellations even legal? Law professor Nicholas Bagley is skeptical. It may be, says Bagley, that HHS has some extra rulemaking authority during the “transitional” phase of ObamaCare, but since when does that give them carte blanche to start changing deadlines set by the statute itself?
As I wrote on Monday, the ACA require all plans sold on the individual market after January 1, 2014 to adhere to a new slate of rules. The administration now says that some of those plans don’t have to. What gives?…
Generic grants of rulemaking authority are not traditionally thought to give agencies the power to revise the effective dates of statutes. That’s why the delay of the employer mandate was so controversial. Although the IRS’s practice was sufficiently well-entrenched that it gave the administration a reasonable legal basis for acting, I’m skeptical that CMS has developed a similarly well-entrenched practice. (The two examples above are of quite recent vintage.) I could be wrong about that; maybe CMS really does do this kind of thing all the time. But if I’m not, the administrative fix may be vulnerable to even sharper claims of illegality than the delay of the employer mandate.
This is one reason why, I assume, Democrats like Landrieu still want to pass something in Congress. That would solve the legality issue. (And of course, it’d also give Landrieu something concrete to show conservative voters in Louisiana about her role in undoing the mass cancellations.) Problem is, Senate Democratic leaders seem to think that nothing will, or even can, pass. Landrieu’s bill would be dead in the House because it’s a mandate and Republicans don’t like mandates. Upton’s bill can’t pass in the Senate because it would allow all new enrollees, not just people who’ve had their coverage dropped, to enroll in an un-canceled plan. This is why Democrats wanted an administrative fix — which may, in fact, be illegal. On to the Supreme Court!
Update: Let the state-regulator revolt begin.
Arkansas looks to be a no-go on Obama plan. MT @ArkDavey Arkansas Ins commissioner: Plans NOT to allow Obama's GF renewals into 2015
— Sarah Kliff (@sarahkliff) November 14, 2013
Guy Benson e-mails to note that both Kreidler and the Arkansas insurance commissioner are Democrats.