This article makes lots of sense in saying the ACA might well go the way of the BCRA, aka McCain-Feingold. First, here’s what Catron said about the process that got rid of the BCRA:

Another provision of Obamacare being challenged in court is the Independent Payment Advisory Board (IPAB). IPAB, you will recall, is Obamacare’s rationing board. When PPACA was signed into law, Congress transferred much of its power to this committee, which will decide what services will be approved by Medicare and how much the providers of those services will be paid. The Goldwater Institute has filed a lawsuit, Coons v. Geithner, which challenges the constitutionality of IPAB under the separation of powers doctrine.

Congress has sole authority on setting the parameters of service. Congress essentially said that they were getting out of the oversight business and that they were giving future presidents a blank check on health care.

This might be the biggest sticking point in the ACA:

And, no list of Obamacare lawsuits would be complete without mentioning the Oklahoma lawsuit challenging the illegal IRS rule by which the Obama administration will attempt to funnel tax credits and subsidies through federally-created exchanges, despite the law’s stipulation that such premium-assistance can only be offered via state-run exchanges. This litigation is, in many ways, the most important of all the lawsuits. Without its insurance exchanges, and the accompanying subsidies, Obamacare will crash and burn.

The bill’s language is quite clearly written. Only those people who purchase their health insurance through state-run exchanges can get premium-assistance subsidies. If the Obama administration can’t extend these subsidies to exchanges run by the federal government, they’re in a difficult position because tons of states have said that they aren’t establishing state-run exchanges:

Over the past week, the list of states not participating in the system has grown to nineteen as the states of Wisconsin, Ohio and Nebraska chose to join sixteen others in rejecting the state health insurance exchange that is called for under the Obamacare law.

Governor Scott Walker of Wisconsin announced his choice in a letter to U.S. Health and Human Services Secretary Kathleen Sebelius on Friday writing, “No matter which option is chosen, Wisconsin taxpayers will not have meaningful control over the health care policies and services sold to Wisconsin residents.”

Maine Governor Paul LePage wrote to Sebelius explaining why his state won’t implement the state exchange saying, “In the end, a state exchange puts the burden onto the states and the expense onto our taxpayers, without giving the state the authority and flexibility we must have to best meet the needs of the people of Maine.”

It’s clear that at least 19 states are opting not to establish state-run exchanges, meaning the federal government must implement fed-run exchanges. That’s without undecided states making their decisions. Those states include Florida, Idaho, Utah, Arizona, Oklahoma, Tennessee, Pennsylvania, West Virginia, Arkansas and Iowa.

NOTE: That’s the status as of Nov. 16. It’s likely that at least half of the states that are undecided will reject state-run exchanges, driving the total north of 25 states. If all those states reject establishing state-run exchanges, that represents approximately 162,616,000, which is significantly more than half of the U.S. population of 309,000,000.

Not only wouldn’t those people get subsidized health insurance but it would force the federal government to foot the bills for the exchanges. That will dramatically drive up the federal government’s annual deficits. If you think they’re outrageous now, you’re right. If the federal government has to run 25-28 individual exchanges, these deficits will seem like the good old days.

Killing the PPACA can’t happen soon enough. Once that’s done, serious people can implement real health care reform.

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4 Responses to “Will the ACA go the way of the BCRA?”

  • walter hanson says:


    Since that date you mentioned at least one state Arizona has joined that list of 19.

    Walter Hanson
    Minneapolis, MN

  • eric z says:

    And if the courts gut it, what will replace it?

    Any idea on that? Back to the same old, same old?

    Or a different replacement, possibly more aggressively friendly to the poor and uninsured, that as a new status quo?

    I realize crystal-balling that far into the future presumes intermediate things that are unsure, and then makes almost blind guesses. But, what next, if those challenging the legislation succeed?

  • Gary Gross says:

    Eric, the first priority is gutting this wretched legislation. The next is giving people options. There wasn’t a question of whether people with PECs would’ve gotten covered under any health care reform legislation.

    Finally, people have to have skin in the game. If they’re paying part of the price, they’ll shop around rather than just going with the network.

  • walter hanson says:


    You can replace it with lots of things.

    For starter put in proper tort reform. I had a doctor a few years ago who ordered an ambulance that cost me $200 and the insurance company based on the bill about a thousand dollars just because even though I was healthy enough to have driven my car to his clinic that I couldn’t drive home or to the hospital myself.

    Another thing Eric is right now insurance policies have to a list of things longer than any of your rants several things which people might not want. Let us have maybe five things an insurance policy not one hundred (no free birth control in my policy for example) you reduce costs.

    Allow me to buy another state’s products. Obama is big on these exchanges. Okay I as Minnesota resident should not only be allowed to look Minnesota’s, but if I can find a better deal with New York’s buy New York’s.

    That’s a start. Unfortunately you think that what Obama did is good. It will take years before you learn how bad this is.

    Walter Hanson
    Minneapolis, MN

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