WSJ confirms my point on Halbig: Definition of "established by..." now on the table as well (UPDATE x2)

Unfortunately, the full article is locked behind the paywall, but Taegan Goddard's WonkWire reports that "some" of the 36 states being run through are taking various measures just in case the Halbig decision is ultimately upheld:

Wall Street Journal: “A number of states are scrambling to show that they—not the federal government—are or will soon be operating their insurance exchanges under the 2010 health law, in light of two court decisions this week.”

“The efforts are aimed at ensuring that millions of consumers who get insurance through the exchanges would be able to retain their federal tax credits if courts ultimately rule against the Obama administration.”

“Amid the uncertainty, some of the 36 states in which the federal government has a role in the exchanges are moving to shore up their status. Some are saying publicly that their exchanges have always been state-operated. Others are trying to make the case that they should be considered to have state exchanges regardless of federal involvement. Still others, such as Arkansas, are pushing ahead to take over their exchanges, which would likely free them from the effects of any court decision.”

The snippet above doesn't indicate just how many states "some" or "a number of" refers to, which states those are, or other details; I'd love to be able to read the full article here. The sentences I bold-faced above sound remarkably in line with my post from a week ago, particularly my Twitter discussion with DC exchange project lead Jamey Harvey.

UPDATE: Thanks to Joan McCarter for providing some more snippets with further details about which states are doing what here:

First, there's the 4 "swapper" states: ID and NM, which were already planning on moving from to their own full exchanges, and NV and OR, which were already planning on moving from their own exchanges to (along with...possibly...Massachusetts, although their Plan A for replacing their crappy software with new software seems to be going smoothly so far):

For example, two states, Idaho and New Mexico, had intended to set up their own exchanges but turned to the federal government to handle their technology in May 2013. The Obama administration has described them as "federally supported state-based" exchanges and often issues data on their behalf, in which it groups them with the other 34 states with "federally facilitated" exchanges.

Two other states, Nevada and Oregon, are currently considered to be among the 14 "state-based" exchanges, but have had technological problems and are now looking to the U.S. to operate their technology for the coming year.

These 4 states have by far the strongest cases, since 2 of them were already full state-run exchanges and the other two were already approved for doing so prior to the Halbig case.


Idaho, Oregon, and Nevada have all issued statements saying that they run state-based exchanges, that the technology might be borrowed from the federal government, but the actual administration of the exchanges is what matters, and that it is done by the states. That's the argument also made by Delaware and to varying degrees as well by Arkansas and Illinois, where there are strong pushes from the legislatures to move ahead on establishing fully state-run exchanges. 

Assuming all of these are on solid legal ground, that's a minimum of 20 states which should be squared away...and again, assuming the SCOTUS takes up the case, there will likely be another year (and a 2nd full open enrollment period) before a final ruling is issued, giving the other 30 states some more time to consider their options.

UPDATE x2: An excellent article in Modern Healthcare about the intense political pressure already being placed on Republican Governors of states which didn't implement their own "full" exchanges (which is to say, all of them except for Nevada):

Republicans could face a backlash if their constituents realize they could lose benefits due to a lawsuit broadly backed by GOP politicians. That could be problematic for Republican governors facing tough re-election contests in states such as Florida, Georgia, Maine, Pennsylvania and Wisconsin. Those governors already are under pressure from hospitals and other business groups to expand Medicaid to lower-income adults as allowed under the Patient Protection and Affordable Care Act. 

“If the end result is if you live in New York you get (subsidies) and if you live in Georgia you don't, I don't think that's politically palatable,” said Kevin Wagner, a political science associate professor at Florida Atlantic University. “You start hitting middle-class people, and they vote.”

And, again, much of this sounds awfully familiar:

Attorney Mark Rust, chair of Barnes & Thornburg's healthcare practice in Chicago, said the seven states such as Illinois with so-called partnership exchanges—which rely on for enrollments but fulfill other duties such as plan management—already may meet the standard for having a state-based exchange. Other states could fairly easily convert to this hybrid model, he added.