Over at HuffPo, Craig Konnoth has a short-but-smart piece exploring the Constitutionality of the logrolling deals now underway to persuade Alaska Senator Lisa Murkoswki to support the latest effort to repeal Obamacare. Would other states have a right to object to a deal that showered special benefits on Alaska? Konnoth explains how an “equal sovereignty” principle has emerged in recent Supreme Court decisions, and suggests that it may provide some grounds for challenging this sort of special treatment.
I am left wondering about the longstanding practices of states requesting and receiving waivers from the Federal government. For example, Maryland has for decades enjoyed a Medicare waiver, which allows it to regulate prices. Massachusetts has a $52B waiver to put its Medicaid members in accountable care organizations. Do these violate equal sovereignty too?
Maybe the answer is that all states are treated equally in their right to apply for such waivers, under several explicit statutory vehicles, which have yielded several hundred such applications. These are not simply bribes to secure votes in Congress. On the other hand, some of these waivers were very much the result of politically-charged negotiations between conservative governors (such as Indiana’s Mike Pence) and the Obama administration, who granted these waivers as a way to expand insurance coverage. Maybe that’s not so different than what Murkowski is demanding?