OLYMPIA, June 29.—At long last, it appears one issue that loomed over this year’s gubernatorial race has finally been settled – Washington state and the rest of the country are moving ahead to implement the federal Affordable Care Act. And so Thursday’s Supreme Court decision appears to have deleted an issue from this year’s contest that had offered Democrat Jay Inslee a way to distinguish himself from Republican Rob McKenna.
McKenna was among the Republican governors and attorneys general in 26 states who had sued to challenge a key element of the national health care reform law. For the last two years, Democrats and activist groups have been making hay of the fact. But the Supreme Court’s ruling Thursday decided that case: It’s over. And it’s not going to be easy keeping the argument alive when both candidates are basically saying the same thing.
At dueling news conferences, both candidates said they support expansion of state Medicaid programs to cover as many as a half-million Washington residents who do not currently have health insurance. That’s the big remaining discretionary question for the state. Other questions are a matter of detail — things like liability reform, and the way insurance policies are configured for sale on the state’s soon-to-be-launched health insurance “exchange.” Inslee’s support for his party’s health care law was never in doubt. As for McKenna, he took a more moderate position Thursday than many in his own party, saying it’s time to accept that the law is the law.
McKenna said he does not support repeal of the federal health care reform legislation. His beef was with the requirement that all Americans obtain insurance — a question that now has been asked and answered. McKenna said he believes there is much good in the law. Practically speaking, he said repeal is unlikely to succeed in a Democrat-controlled U.S. Senate. “Instead of fixating on hypotheticals, we should fixate on the real world and move forward in a practical and pragmatic way.”
Perhaps the best illustration of the way the issue has changed came at noontime Thursday in Olympia. A band of about 50 activists coordinated by the Washington Community Action Network staged a demonstration outside the attorney general’s office in Olympia, and then trooped inside to drop off a letter, evidently written before the decision was announced. “Attorney General McKenna, we call on you to end your political attacks on health care for Washingtonians,” it said. Communications director Janelle Guthrie met them at the door and asked them if they had heard McKenna had just held a news conference at which he said he does not support repeal, and that the law ought to remain in place. The activists kept chanting anyway.
State Moving Forward
It was one of the striking developments of a day in which seemingly every political figure in Washington state had something to say about the Supreme Court decision, and most of them said it in the form of press releases or news conferences. The decision came in a way that allowed both sides to declare victory. Democrats won the overall case. But Republicans could point out that the Supreme Court essentially agreed with them on their legal point – that the Commerce Clause of the U.S. Constitution does not give Congress the authority to require Americans to obtain health insurance from private companies. Instead, the court found that Congress can impose the so-called “individual mandate” under its own taxing authority. Which makes it a tax — a four-letter word to many.
Though the lawsuit had cast a shadow of doubt over the program, Washington had been ahead of most states in preparing to implement the program. Washington is among the states that is developing its own exchange for the sale of individual health insurance policies to those who qualify for tax credits and subsidies, starting in October 2013. Low-income adults will be covered by Medicaid programs. Doug Porter, director of the state Health Care Authority, said the state isn’t sure exactly how many additional people will enroll. “I would say the dollar amounts will be significant,” he said, but he pointed out that for the first three years it will be a federally financed program, and even after that point the state will pick up only a small share. “90-10 is still a good deal,” he said.
Most state-level reaction was in the nature of general huzzahs, at least from Democrats, or in the case of Republicans, puzzled dismay. Count Democratic Gov. Christine Gregoire among the celebrants. At her own news conference, she seemed to congratulate everyone, except perhaps McKenna, whose participation in the lawsuit she had opposed. She noted that the Republican argument might have overturned the entire health care law: Although McKenna’s problem was with the individual mandate, the position taken by the 26 states as a whole was that if that single piece was removed, the entire law had to come down. Gregoire said somehow she doubted that people really care whether congressional authority is derived from one part of the constitution or another.
“It’s about real Americans,” she said. “This is about real Washingtonians. This is about real people across the state and the nation who are winners today. Our economy and our state wins, too. You can’t be the most trade-dependent state in the nation with skyrocketing health care costs and fail to recognize it is making it so that we can’t be competitive.
“So to our businesses I say congratulations. To every parent who can’t afford to take their child to the doctor, congratulations today. To every person with a pre-existing medical condition, you have won. To every person who got a letter in the mail saying that their insurance was going to be revoked because they had a pre-existing condition, you won today. Every young person who has the ability to stay on their parents’ insurance plan, congratulations to you. The real winners are the people of our state those who already have benefited from the Affordable Care Act and those who will benefit in the years to come.”
Making a Distinction
Whether or not the law actually remakes the world, the immediate question in the political realm is how it plays. Dwight Pelz, chairman of the state Democratic Party, said Thursday that McKenna’s participation in the federal lawsuit demonstrated that he is a dangerous right-winger “who wanted to satisfy the Tea Party that he was with them on this; he wanted to impress Karl Rove and the national conservative movement and he is hoping to get millions from them.”
And even though the issue has been decided well in advance of election day, Pelz insisted that it will drive voters to the polls four months from now. “The Supreme Court has sort of lifted the veil of uncertainty from this legislation, and you are going to see people more and more committed in supporting this bill. All the pieces Americans want, coverage for pre-existing conditions, no lifetime caps, affordable care – these are the parts of the bill that are popular, and the bill is only going to rise in popularity in the months ahead.”
Inslee, meanwhile, told reporters he is still the health care care candidate. But he seemed to be steering the conversation away from the Affordable Care Act and toward the war-on-women theme that is playing big in Democratic strategy this year. Inslee cited his support for an insurance bill Democrats were unable to pass in the Legislature this year despite the fact that they hold the majority in both chambers. The bill would have mandated abortion coverage when a health policy provides maternity care. “Health care is going to remain an important theme for years to come,” Inslee said. “Our state has a very important role in designing the exchanges to make sure that a woman’s right to coverage for health care in its entirety is covered. I’m standing up for a woman’s right to reproductive privacy to be honored. I am the only candidate supporting the reproductive parity act, to make sure that women’s rights of health care and choice is in fact protected, so it is an issue that is important. As governor I intend to stand there for a woman’s right to health care.”
Moderate Position for McKenna
Meanwhile, McKenna acknowledged that the Supreme Court decision was a bit of a surprise for technical legal reasons. If the individual mandate is a tax, lower courts and legal scholars had maintained that the lawsuit would be blocked by the federal anti-injunction act, which prevents challenges to a tax before it has actually has been paid – meaning that the suit was not yet ripe and no decision could have been made. The court decided the act didn’t apply in this case, thus giving it a way to settle the argument.
The finding that the Commerce Clause does not provide authority for the mandate is a “victory for federalism,” McKenna said, but he said he is concerned that the finding regarding taxing authority may be used to expand federal power over citizens. “I’m not seeing the limiting principle in the majority opinion that would prevent taxing authority from being used to try to force Americans or incentivize Americans into doing other things the government wants,” he said. “We have to think about that and we have to see what Congress decides to do, if anything, with that authority.”
McKenna said the lawsuit aimed to settle an important constitutional question – whether Congress has the right to force Americans to make “personal spending decisions about health care or anything else; that Congress can’t force you to buy something you don’t want or isn’t right for you.”
And now that the Supreme Court has said yes indeed it can, McKenna said it’s time to move on and implement the program as best as the state can do it. There are plenty of good things about the law, he said. “One of the criticisms of many of my party of the act is that they rolled everything together into one enormous 2,700-page package and rammed it through, recognizing that there are some good parts that have Republican support as well as some things that some Republicans object to.
“To completely blow it up, I think, means that we are committing the same sin, but in reverse, and besides, it is completely politically unrealistic. So let’s go through and find the parts that are particularly unworkable or objectionable and work on those individually. I think that is the only way they’re going to get done anyway.”