Given the ACA’s origins as a state-level initiative in Massachusetts, interstate health-care exchanges could be operable without lawmakers’ consent under the Supreme Court’s holding in U.S. Steel Corporation v. Multistate Tax Commission, though they would be exposed to the same vulnerabilities as the RGGI. But given Republican support for states’ rights, they might even get congressional approval. A recent Republican plan to replace Obamacare would permit states to “keep the Affordable Care Act if it is working for their residents,” as Senator Susan Collins described. While its future is unclear, the plan is a sign that there’s appetite for honoring states’ health-care decisions, which could include interstate agreements.
Elridge is not even certain that multistate exchanges would be seen as controversial as interstate compacts go, despite the charged political climate. “If Kentucky and Tennessee, North Carolina, South Carolina, and West Virginia said, ‘We understand the health challenges in these states, we’re going to develop some kind of interstate compact that works in terms of expanding access to care, making it quality, and making it affordable,’ they can absolutely do that,’” he said.
Phil Scott, the new Republican governor of Vermont, has already suggested as much. Scott ran on a platform promising to merge Vermont’s exchange with that of another state, possibly New Hampshire, to save money on maintenance and operating costs. This could be the first step toward creating regional health-care exchanges that build on the ACA.
Even with congressional approval, there could still be some limitations on multistate exchanges. The Constitution puts limits on the ability of individual states to hamper interstate commerce or discriminate against out-of-state economic interests. For instance, a climate compact that bans the importation of electricity from a state outside the compact could violate the Constitution. State legislatures may also be wary of approving expenditures that are tied to the actions of other states, even if they isolate their own revenue, as is done with RGGI.
Administrative agencies that oversee enforcement of the compacts may also fall prey to political meddling and corruption, because appointees who run them are often friends of elected officials and there can be lax oversight of their activities. Governor Christie’s own woes involving the New York-New Jersey Port Authority’s links to the Bridgegate scandal point to such a reality.
Like all legislation, compacts appear likely to succeed where participants are eager to join. On health care, the first states to consider them in recent years have been red states looking to dodge Obamacare—not blue states. In 2014, nine largely conservative states put forward their own Health Care Compact to get around the health-care law. The proposal promised to let the participating states use federal funds to run health-care programs, while allowing each member state to define priorities and administer programs at the state level. It stalled because of the unclear language of the legislation and the wariness of governors to give up states’ rights.
Elridge sees new state leaders taking up health-care compacts again, but not before they know more about what a Trump administration plans to do. For now, he said, they seem to be “taking a wait-and-see approach.” When they choose to act, they may see fit to take matters into their own hands, but do so together.