ObamaCare Implementation: What Rivkin Said, and Why

A couple of people have asked me about a comment David Rivkin made at Cato’s recent conference on the first anniversary of ObamaCare.

Rivkin is representing the 26 states suing to overturn ObamaCare in Florida v. HHS, the case in which a federal judge declared ObamaCare unconstitutional and void. In his most recent ruling in that case, Judge Roger Vinson allowed the Obama administration to keep implementing and enforcing the law, in part because the fact that most of the plaintiff states are also implementing the law “undercut” their request that he stop the Obama administration from doing so.  I (and others) have been urging states to follow the lead of Republican governors Rick Scott (FL), Sean Parnell (AK), and Bobby Jindal (LA) by refusing and returning all Obama funds and refusing to implement any type of health insurance “Exchange.”

According to Politico, when asked about the impact of states implementing the law, Rivkin said:

The decision to take money or not take money is a quintessentially political decision that does not impede legal claims… If a given state wants to continue complying with Obamacare and receiving money, that’s not impairing our ability to challenge the law.

Consider that answer in context.  Rivkin is representing 26 states, and as their attorney he has a duty to them.  Asking him if plaintiff states implementing ObamaCare are undermining the lawsuit is basically to ask, “Aren’t 23 of your clients making your job harder?”  What should he have said?  Yes?  Of course not.  As a good lawyer should, he responded that those states are doing nothing to inhibit his ability to litigate the case.  He said nothing about whether those states’ actions could affect the outcome of his case (which they might), nor the likelihood that the law will be repealed (which they obviously do).  On those questions, he’s the wrong guy to ask.