Jonathan Cohn: The Legal Crusade to Undermine Obamacare—and Rewrite History





Jonathan Cohn is Senior Editor of The New Republic and author of Sick: The Untold Story of America’s Health Care Crisis—and the People Who Pay the Price.

Can one very determined libertarian and one very distorted version of history keep millions of people from getting health insurance? We’re about to find out.
 
The determined libertarian is Michael Cannon of the Cato Institute. He was among the most vocal opponents of the Affordable Care Act, going back to the time when it was still a glint in the eyes of Ted Kennedy. The idea of universal coverage is so antithetical to Cannon’s principles that he actually started an "Anti-Universal Coverage Club." Once the law passed and took on the moniker "Obamacare," Cannon became a leading advocate for its repeal. And since he understood the law might survive both the courts and the 2012 elections, as it eventually did, he also made the case that states should avoid complicity in its implementation—and, if possible, actively thwart it. He made that case in his writing and speeches, sometimes directly to the officials with responsibility for implementing the law.
 
One of the arguments he’s made is a legal one, the result of a collaboration with Jonathan Adler, a widely cited libertarian law professor at Case Western University. The state of Oklahoma has filed a lawsuit in federal court, making the same essential case. (I haven’t been able to establish to what extent, if any, Oklahoma officials relied on the Adler-Cannon brief, but the arguments are very close. And no single individual has done more to make the case for state resistance to Obamacare than Cannon.) Note that the lawsuit doesn't have to succeed to cause trouble: Merely by emboldening state officials hostile to the law, it could make implementation, already a challenge, even more difficult.
 
The legal argument focuses on Obamacare’s insurance exchanges—the new marketplaces where people without access to insurance will be able to buy private coverage on their own, regardless of pre-existing medical conditions and with the help of federal subsidies. The law calls upon states to create and operate exchanges, so that coverage is available starting on January 1, 2014. Anytime a state fails to do so, the law says, the federal government should create and run that state’s exchange instead.
 
About these facts, there is no dispute...


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