I’m very disappointed that Sen. Ron Wyden (D-OR) has decided to make an extremely disingenuous argument against the pending individual mandate lawsuit based on his waiver for state innovation provision. I’ve always been a big supporter of this provision, but what Wyden is saying is just dishonest. From Huffington Post:

Sen. Ron Wyden (D-Ore.) has a message for all the attorneys general and Republican lawmakers who are threatening lawsuits and claiming that an individual mandate for insurance coverage is unconstitutional: You don’t have to abide by it — just set up your own plan.

[…]

“Why don’t you use the waiver provision to let you go set up your own plan?” the senator asked those who threaten health-care-related lawsuits. “Why would you just say you are going to sue everybody, when this bill gives you the authority and the legal counsel is on record as saying you can do it without an individual mandate?”

This is not accurate. You see, the problem is that the individual mandate starts in 2014, but states can’t get a waiver to try a different system, potentially one without an individual mandate, until 2017. So, there is nothing states can do to stop the individual mandate from being in effect for at least three years.

Whether you agree with an individual mandate or not, it is just wrong to say people shouldn’t complain because, at some point in the future, they might possibly have a way for states to opt out of it. If the state waiver started in 2014, Wyden’s argument would be perfectly valid, but as the law currently stands, his statement is pure baloney.

Wyden also seems to be glossing over the serious problem of system entrenchment. While it would be easy for a state to experiment with a new health care system in 2014 if they could get a waiver right away, trying to start a new system in 2017 would be much more difficult. The law requires them to put all the effort into setting up this exchange system. Expecting a state to start all over by uprooting this new system and putting up a whole different system after only three years is a huge hurdle.

I really wish Democrats would fix the problems with Wyden’s state waiver provision to make it start right away. It could even be offered as a reconciliation amendment if Democrats had not taken this ridiculous no amendment stance. But until it is fixed, it is very inappropriate to claim that it is somehow an answer to anger against the individual mandate. If you think the individual mandate is wrong, the possibility that it might only be forced on you for three years is not really a solution. Ideally, Wyden’s “state waiver for innovation” would be one of the provisions in this law that might actually get “fixed” before 2014.