Last year, soon after the ACA was signed into law, Colorado Attorney General John Suthers (along with AGs from 26 other states) filed a lawsuit challenging the legality of the individual mandate portion of the health care reform law.
This year, Colorado lawmakers have struggled to begin the creation of a health insurance exchange for Colorado, following the guidelines laid out in the ACA. With such a highly politicized, polarized topic, it’s not surprising that there has been quite a bit of controversy around the health insurance exchange. But we do now have a functioning exchange board (again, not without controversy regarding the make-up of the board) and a legislative oversight committee.
Since there will likely be plenty of legal matters involved with the creation of the health insurance exchange, the board has voted to hire an attorney’s office to provide them with legal counsel. All but one of the board members voted in favor of hiring the attorney general’s office for this position. Arnold Salazar (the Pueblo Chieftain says “Arthur”, but that’s incorrect) was the only dissenting board member. He pointed out that there seemed to be quite a conflict of interest, given that the AG’s office is involved in the lawsuit challenging the ACA on the grounds that the individual mandate is unconstitutional.
Chief Deputy AG Cynthia Coffman pointed out that Suthers is personally in favor of health insurance for everyone, but believes that the individual mandate is not constitutional. That may well be, but it seems unrealistic to think that we can have even remotely affordable health insurance without the mandate. Of course, that’s assuming that we continue on with the plan to have all health insurance be guaranteed issue starting in 2014. If we’re going to ditch both the individual mandate and the guaranteed issue provision, what’s left? I know that many of the key players in the lawsuits challenging the legality of the individual mandate claim that it is only that portion of the ACA that they are railing against. But the individual mandate is one of the cornerstones of the legislation. If we take it out, other aspects of the law might have to be scrapped as well.
Coffman said that the attorney general is “not in a position of legal conflict”, and that even if the individual mandate is deemed unconstitutional by the Supreme Court, the health insurance exchange would still exist since it has been created by Colorado legislation and isn’t being challenged by Suther’s lawsuit.
But would it really? If the individual mandate is found to be unconstitutional and is removed from the ACA, will the rest of the law start to unravel as well? I have serious doubts about whether the guaranteed issue aspect of the law would be able to remain in place without the individual mandate. What would the health insurance exchanges do in that case? Just offer the same policies that we have now, available only to people who can meet the medical underwriting standards? I suppose the exchange would be able to administer the premium subsidies that will start to be available in 2014, but it would seem odd to go through all the effort of setting up health insurance exchanges to just serve the same population that is already purchasing their own health insurance (since there would be no individual mandate bringing in the currently uninsured population). In order to be successful, it’s widely believed that the exchanges are going to have to attract a large number of participants early on. Without the individual mandate, their chances of being able to do so seem remote.
I know that legal professionals are often called upon to lay aside their own personal opinions in a quest to follow the letter of the law, and I’m confident that the Colorado Attorney General’s office will be able to provide competent legal advice to the exchange board. In addition, it appears that the board is getting an excellent value, since they’ll be paying less than $79/hour for a lawyer. But I assume that John Suthers is hoping to prevail in the lawsuit challenging the individual mandate, and I am a bit skeptical about whether the rest of the ACA (including the health insurance exchanges) could survive without the individual mandate.