It’s a safe bet that Republicans in the Arizona Legislature never envisioned themselves as facilitators of the federal health care law. Yet, ironically, that’s exactly the role they may fill as they mull legislation to set the stage for what they have dubbed derisively “Obamacare.”
Influential Republicans in the Legislature and Gov. Jan Brewer have indicated that they intend to craft legislation to create an insurance exchange program that would allow individuals to compare and purchase health plans through a web portal beginning in 2014. It will take time to set up the insurance exchange, which is a mandatory part of the federal health care law.
“I think it would be in the best interest of Arizona citizens to be prepared to implement any exchange system that’s required in the most free-market way possible so that Arizonans have the most choice,” said Sen.-elect Nancy Barto.
Most Republicans in the Legislature, including Barto, would prefer to stand in the way of the federal health care law rather than pass more laws to set the stage for it.
In fact, Republican lawmakers resoundingly supported Brewer’s decision this year to join 19 other states in a lawsuit against the federal government to block the health care law, and Barto helped write a ballot measure, approved by voters, that is intended to guarantee Arizona residents the right to make their own health care choices without government interference.
But Arizona’s options are limited: If the state balks at implementing the health care law, the federal government has the authority to set up the support network and administer the reforms without collaborating with the state.
Some Republicans are so repulsed by the health care overhaul they would prefer that Arizona refrain from helping to lay down the infrastructure to move it forward.
“Do you set up a system where you commit suicide on your own or do you let somebody else show you?” said Sen. John Nelson, a Republican from Litchfield Park who views the federal law as an unconstitutional rationing of medical services.
Notwithstanding how Nelson and others feel about the federal law, constitutional experts said Arizona can’t block it. Even the passage of Proposition 106, known as the Arizona Health Care Freedom Act, will be inconsequential as the federal law takes effect.
“Federal law pre-empts state law that’s inconsistent with it. So insofar as federal law requires anything, the state Constitution cannot say otherwise,” said Paul Bender, a professor of constitutional law at Arizona State University.
What the state can do — which it already has, in fact, done — is to challenge the law in federal court.
“Until it is decided that they (federal laws) are not (constitutional), they prevail,” former Arizona Supreme Court Justice Stanley Feldman said.
Meanwhile, the Governor’s Office has indicated it would support legislation to comply with the federal health care law. The idea is to be prepared in case the courts refuse to strike down the law.
“Arizona has joined with other states in litigation regarding the most egregious of the mandates. However, until the law is overturned, Arizona is endeavoring to comply with its requirements,” said Tasya Peterson, a spokeswoman for Brewer.
Adding to the pressure on Republicans to act pragmatically, Arizona’s insurance industry has been lobbying to keep the federal government at bay by creating the exchange and setting the stage for the health care law while the state’s lawsuit moves ahead.
Setting up the exchange is Arizona’s opportunity to inject “a little bit of state’s rights” into health care reform, said Charles Bassett, vice president of government relations and public policy for Blue Cross Blue Shield of Arizona.
“I don’t know how the federal government would run it, but it may not be consistent with the way Arizonans want it to be run, and this is our chance to ensure that it is,” Bassett said.
Other changes to state law might be necessary as the federal health care law takes effect little by little during the next eight years.
For example, the federal law prohibits insurers from denying coverage to people with pre-existing conditions and extends coverage to adult children up to age 26 under their parents’ insurance. Arizona law has not been updated to reflect those changes.
It appears as though Arizona will be able to adjust its laws to conform to the federal mandates without violating the section of the state Constitution that will be added as a result of the passage of Prop. 106.
The ballot measure, known as the Arizona Health Care Freedom Act, was designed to head off government intrusion into health care decisions by giving Arizona residents the right to participate in any health care plan that they choose or opt out completely. It will be written into the state Constitution after passing with more than 55 percent of the vote Nov. 2.
But the constitutional amendment appears to be nothing more than a technicality for now because none of its language prevents the state from passing laws to set the stage for the federal health care law.
The insurance exchange, for instance, can be set up to avoid a conflict with the state Constitution, said Don Hughes, a lobbyist for the insurance industry.
“If you establish the exchange as strictly voluntary, as simply another mechanism to buy health insurance, it doesn’t conflict with Proposition 106,” Hughes said.
Dr. Eric Novack, chairman of the campaign for Prop. 106, agreed that setting up the insurance exchange wouldn’t violate the Arizona Health Care Freedom Act. He said there will be no conflict between the constitutional amendment and the federal law for the first several years.
Novack and other health care policy experts said they expect the first clash between the federal law and Arizona’s new constitutional language in 2014, when most residents will be required to have minimum health coverage.
But even then, legal experts said, the state’s constitutional provision will be fairly ineffective.
Bender, the constitutional law professor, said an Arizona resident may sue the federal government over the health care law, but the provision in the state Constitution won’t affect the case.
“It doesn’t matter whether state law is adopted as a statute or a constitutional amendment or written in blood or decided by judges or by a unanimous Legislature or by the people, it doesn’t matter,” Bender said.