Obamacare won't be repealed. States now must act.

As House Speaker John Boehner said this week, the presidential election confirms that the Affordable Care Act 'is the law of the land.' But the fight over 'Obamacare' is not over as states decide whether to craft their own insurance exchange program or leave it to Washington.

Charles Dharapak/AP
Supporters of the Affordable Care Act rally in front of the US Supreme Court in Washington in March as the court heard arguments on the health care law signed by President Barack Obama.

Mitt Romney declared many times during his campaign that he’d “repeal Obamacare on day one” of his presidency. But as House Speaker John Boehner said this week, “the election changes that.”

The 2010 Patient Protection and Affordable Care Act – “Obamacare,” as everyone now calls it – is designed to extend health coverage to more than 30 million uninsured Americans beginning in January 2014.

Under the law, states must decide whether to expand their Medicaid coverage for low-income Americans (to be paid for by the federal government) and also whether to form health care insurance exchanges – an online marketplace where individuals and small businesses can shop for health insurance, presumably in a more competitive environment.

Sixteen states and the District of Columbia are on track to set up their own exchanges, while nine have decided they will not, according to an Associated Press tally. The federal government could end up running the new health care insurance markets in half or more of the states.

Americans for Prosperity (AFP), the conservative advocacy group linked to the Koch brothers, is pushing governors to resist the law’s Medicaid expansion and state-based insurance exchanges, reports The Hill magazine.

“States can and do have the power to reject federal attempts to compel their action. Governors should use that power to tell the federal government no,” AFP state policy manager Nicole Kaeding said in a statement Friday. “By creating an exchange, states will serve as de-facto administrators of the federal government implementing its rules, regulations and mandates.”

BEYOND OBAMACARE: 5 opinions on health care reform

Kansas Gov. Sam Brownback (R) is typical of those refusing to cooperate with Obamacare.

“Kansans feel Obamacare is an overreach by Washington and have rejected the state’s participation in this federal program,” Gov. Brownback said in a statement after this week’s election. “My administration will not partner with the federal government to create a state-federal partnership insurance exchange because we will not benefit from it and implementing it could cost Kansas taxpayers millions of dollars.”

On Friday, a group rallying at the statehouse in Topeka urged Brownback to accept the federal expansion of Medicaid, something he has yet to decide.

In Missouri, meanwhile, Gov. Jay Nixon (D) would prefer to have a state-run insurance exchange but is prevented from submitting a plan to the US Department of Health and Human Services by next week’s deadline unless he gets legislative approval. Missouri voters this week approved a ballot measure prohibiting the governor from establishing an exchange unless it is specifically authorized by the state legislature or public referendum.

 "The only option for Missouri at this time is to indicate that we will be unable to proceed with a state-based exchange absent a change in circumstances," Gov. Nixon said at a news conference. But he added: "Let me be clear that a federally facilitated exchange is not the ideal approach. Regulating the insurance market is a power best left in the hands of the states."

In Virginia, Gov. Bob McDonnell (who chairs the Republican Governors Association), will default to a federal exchange with the understanding that the state could change course later, reports the Richmond Times-Dispatch.

"I don't want to buy a pig in a poke for the taxpayers of Virginia," Gov. McDonnell said at a postelection news briefing. "At this point, without further information, the only logical decision for us is to use the federal option."

In Wisconsin, Gov. Scott Walker Republican and leaders in the state Legislature “are now scrambling to figure out their next move,” reports the AP from Madison.

Gov. Walker had held off planning for a state-run insurance exchange – first until the US Supreme Court took up Obamacare (which the court mostly upheld) and then until the presidential election. Walker also rejected $38 million in federal money that could have gone toward paying for implementing the law.

Not only did Walker’s Plan B fail when Mitt Romney lost the election. US Rep. Tammy Baldwin (D) beat former governor Tommy Thompson in the race to replace retiring US Senator Herb Kohl, helping strengthen Democrats’ hand in the upper chamber.

After the election, Walker downplayed the urgency of the situation, saying no matter what the state does the federal government won't review it for months, according to the AP. Walker has said he doesn't think it would be a problem for the state to get an extension.

"Even after notifying them, we have until next fall to make modifications as we see fit," Walker said. "We haven't made a decision yet."

Recharged by the election of Rep. Baldwin to the Senate and the re-election of President Obama, health care activists in Wisconsin are pushing Walker to get on with the state’s health insurance exchange.

“Now that the election is over and the Affordable Care Act will be implemented, it is time for the Walker Administration to stop playing political games with the health of Wisconsin’s citizens,” said Robert Kraig, executive director of Citizen Action of Wisconsin, in a statement. “The new health insurance exchanges, along with the expansion of Medicaid, will guarantee for the first time that everyone can control their own health care decisions and will have the peace of mind of knowing that there is a place to go, no matter what, to get quality affordable coverage.”

So at this point, governors have only two choices: Devise an insurance exchange for their states or leave it up to Washington to do it for them.

“It's pretty clear that the president was reelected,” Mr. Boehner told ABC News. “Obamacare is the law of the land.”

Later, a spokesman tried to walk that back.

"While Obamacare is the law of the land, it is costing us jobs and threatening our health care," said Boehner’s communications director. "Speaker Boehner and House Republicans remain committed to repealing the law…”

With a Democratic Senate and Obama himself in the White House for another four years, that seems more wishful thinking than anything else.

BEYOND OBAMACARE: 5 opinions on health care reform

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