As Idaho goes, so goes the nation.

by Nicholas Bagley — Thursday, Feb. 22, 2018

I’ve got a new piece at Vox digging into Idaho’s decision to flout the Affordable Care Act. If you want to learn something about Idaho administrative law (I know, I know, pure clickbait) this is the place to look. I also examine the analogy between what Idaho’s doing and marijuana legalization.

The upshot is that I wouldn’t count on the courts to intervene, even though what Idaho is doing is patently illegal.

If Idaho moves forward and other states follow its lead, what will emerge is a gray market in noncompliant insurance coverage, not unlike the gray market in legalized marijuana. Indeed, the marijuana analogy fits neatly. In both cases, state officials have purported to legalize conduct banned by federal law; in both cases, federal officials have been reluctant to enforce a law they disagree with.

And as with marijuana, what starts in one state will spread. As floutings of federal law go, Idaho’s approach is pretty measured. Under its rules, insurers that sell noncompliant plans must also sell compliant plans, the unhealthy can “only” be charged 50 percent more than the healthy, and insurers must cover preexisting conditions (unless there’s a gap in coverage, in which case they don’t).

But other red states that follow Idaho’s lead may not be so restrained. They might allow insurers to ditch their ACA-compliant plans, to exclude any and all preexisting conditions, or to jettison coverage for mental health care. Red states could take us back to the harsh pre-ACA state of affairs, and all without the need for congressional action.

So this story isn’t really about Idaho. It’s about every Republican-controlled state that’s waiting to see what happens next.


Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Nicholas Bagley

Nicholas Bagley is a Professor of Law at the University of Michigan Law School.

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