I previously blogged about West Virginia’s challenge to the Obamacare Administrative Fix. In short, it allowed insurers to continue offering grandfathered plans (which were void under federal law), allowed state insurance commissioners to authorize these void plans, and (contrary to the statute) HHS would not serve as a backstop and enforce the law for the states (cooperative federalism, or something like that).
Nick Bagley observes that WV faced the “same choice before and after the fix.”
For all practical purposes, West Virginia faced the same choice before and after the administrative fix: whether to use state resources to enforce the ACA. And it was a bona fide choice: prior to the fix, insurance commissioners in six states had announced they wouldn’t enforce the statute. All the administrative fix did was change the political stakes of a non-enforcement decision.
I think the choice is somewhat different before and after the fix.
As one other level of Obamcare irony, the administrative fix operates much like how the tax credits work, as articulated by the Halbig challengers–states that do not play ball will be punished, and their citizens will get the shaft.