Keep Implementing

There's a piece in Robert Caro's lengthy (and excellent) biography of Robert Moses, The Power Broker, where Caro discusses legal challenges to one of Moses' many public works projects, a particular park. As the case spends years winding through the legal system, draining the financial resources of his outgunned opponents, Moses keeps plugging away at the project:

Justice Louis Brandeis brought the legal fight to an end on January 21, 1929, four years after the Biltmore hearing, by refusing to issue a writ of certiorari which would have enabled the Court to hear the case--it was obviously not pressed vigorously in those last stages, as though the case were really over already.

And, in fact, it was. Moses had never stopped developing the Taylor Estate--as if its acquisition were a fait accompli. By the spring of 1927, he had laid concrete for access roads and parking fields, set out scores of stone fireplaces and picnic tables, erected wooden bathhouses with showers and lockers and finished renovating the mansion and outbuildings, at a total cost of hundreds of thousands of dollars. During the summer of 1927, it had hundreds of thousands of visitors. By the time the higher courts came to rule on the question of whether the Taylor Estate was a park it was a park. What was a judge to do? Tell the state to tear up the roads and tear down the buildings, to destroy what hundreds of thousands of dollars of the public's money had been spent to build? Tell the people who had visited the Taylor Estate that they could visit it no more? In theory, of course, judges should not be influenced by such considerations. But judges are human. And their susceptibility to such considerations was undoubtedly increased by Moses' willingness to attack publicly those of them who ruled against him, as he had done to the "local judge," thereby letting the public know exactly who it was who was closing the park to them.

I was reminded of that by yesterday's ruling in a federal district court that the Affordable Care Act is unconstitutional. Unlike the two federal judges who ruled that the ACA is in fact constitutional and the federal judge in Virginia who ruled a few weeks ago that the individual mandate--but only that provision--is unconstitutional, yesterday's sweeping decision declared that the entire law is unconstitutional. But like the Virginia decision, yesterday's ruling didn't issue an injunction halting implementation of the law--at least, not technically, which is leading to some confusion:

The judge declined to immediately enjoin, or suspend, the law pending appeals, a process that could last two years. But he wrote that the federal government should adhere to his declaratory judgment as the functional equivalent of an injunction. That left confusion about how the ruling might be interpreted in the 26 states that are parties to the legal challenge.

But the administration made it clear that it intends to keep implementing the law. And at least for now, says POLITICO, implementation continues in the states, even in the 26 states that are party to this particular lawsuit.

And, recalling the tactics of Mr. Moses, pressing on with implementation--making reform the status quo--only helps proponents of the ACA. Not because it's more likely to melt the icy hearts of the conservative wing of the Supreme Court (although who knows?) but because after a certain point large pieces of it will become self-sustaining. Just about every state has already been funded to start planning their state health insurance exchanges; the application for the next round of grants--establishment of exchanges!--is open right now. And building a new insurance market seems to be an idea even conservative states are open to. For example, from earlier this month:

AUSTIN – A key House GOP health policy writer has filed legislation to create a state-run health insurance exchange in Texas.

A bill by Rep. John Zerwas, R-Katy, would create a Texas Health Insurance Connector, or simplified insurance market.

[...]

"My opposition to the federal health care reforms is no secret, and I continue to support Attorney General Greg Abbott's efforts to have the law declared unconstitutional," he said.

"But the ‘connector concept' has been around for decades and did not originate with Obamacare," Zerwas said. "Quite frankly, it is something that we should consider on its own merits regardless of the fate of the federal reforms."

Things like extended dependent coverage (up to age 26) have become the status quo, the federal Office of Consumer Information and Insurance Oversight has been established, many states are changing their laws to ensure better oversight of insurance premium hikes, some health care providers have started to redesign themselves in responses to the ACA, and so on. We've spent the better part of a year pushing the boulder up the hill, now it's time to get it over the hump and let it roll down the other side.

That's not to say an actual repeal or overturn of the ACA wouldn't be disastrous. The exchanges are being built with the assumption that federal subsidies will be there to support low-to-middle income people who buy insurance through them. The Medicaid expansions can't happen if federal law goes back to the way it was. The altered incentives, the scalpels and chainsaws I've mentioned before, and all of the little (and big) improvements sprinkled into federal law will disappear.

But the further along implementation goes, the deeper the investment that states are making will go and the more the behaviors of insurers and providers will be reshaped. It might all still be for nothing if the ACA were to vanish but it does raise the odds that something that can't be stopped has been started.