Tinkers, Tailors, Soldiers and Sighs: States, Lawmakers Pursue Divergent Responses to 'Obamacare'

"One, two, many Vietnams," wrote Che Guevara in 1967, explaining the Marxists' long-term plan for defeating the United States by attrition.

Similarly, and with the zeal of revolutionaries, opponents of President Obama's signature legislative accomplishment of health care reform are proceeding along one, two, many tracks to blunt, derail, circumvent, end-run, or otherwise resist it. The action is unfolding quietly but steadily in the U.S. House of Representatives, where GOP chieftains are preparing to take control next year and attempt to starve the Affordable Care Act of requisite funding; in state legislatures, where the GOP made impressive gains on Election Night and at least thirty states have introduced measures aimed at blocking the act's controversial "individual mandate" provision; and in the federal courts, where twenty state attorneys general, joined by Sen. Minority Leader Mitch McConnell (R-Kent.), have filed suit to challenge the constitutionality of the Obama law.

But as in all revolutionary movements, moles - poseurs, impostors, agents provocateur - have been spotted. To conservatives, this is the role played currently by Sens. Scott Brown (R-Mass.) and Ron Wyden (D-Oreg.), who have co-sponsored legislation during the current lame duck session of Congress billed as an "opt-out" from the Obama health care law.

Both men, in introducing their legislation, cast it as a bold break from the president's reform package. "When I see something that does not make any sense in Washington, I do my best, regardless of party affiliation, to fix it," Brown said on the Senate floor on Nov. 18. "As the senator suggests," Wyden declared a few minutes later, "if we can just move away from a federal cookie-cutter approach, and encourage the kind of creative thinking we have seen in Oregon and in Massachusetts, I think we will be well served and will be in a position to better contain health care costs."

In fact, the Wyden-Brown measure only proposes to move up by three years, from 2017 to 2014, the starting point already embedded in the existing law at which states can seek to opt out of the "individual mandate" provision. This is the section, which mandates that individuals purchase health care insurance or face a fine. The opt-out would only be granted by the Department of Health and Human Services if the state seeking it can demonstrate that it will meet the Obama law's broader goals, such as ensuring that certain percentages of state residents receive coverage.

Wyden and Brown argue that states which will eventually qualify for the opt-out in 2017 should not now have to build bureaucratic infrastructure that they will only dismantle in a few years' time.

But the fact that the Wyden-Brown measure seeks no permission for states to deviate from the Obama law's fundamental goals has not been lost on conservative analysts, who smell at least one rat in their ranks. One analyst said that instead of offering a get-out-of-jail-free card, Wyden-Brown provides a coupon for a little more down-time in the prison yard.

"This is a ‘mandate lite,'" said Thomas P. Miller, resident fellow at the American Enterprise Institute. "It reflects some political needs and sensitivities...The irony is the current law is not going to be able to accomplish these various goals but it pretends that it is going to. And then you have to somehow prove beforehand, without actually having any of this implemented, that you've got another way to do it and it's demonstrable that it will actually achieve these goals - which the folks who designed this legislation, under their own rules, probably can't accomplish, either."

Lawmakers in some other states - cash-strapped Nevada, Washington, Wyoming, for example - are mulling legislation that would enable their states to opt out of the federal Medicaid program. "That's in the discussion stage. No one has really stepped forward and figured out a way to come out whole on that," Miller said. "It's hard to withdraw from part of the Medicaid program without withdrawing from all of the Medicaid program."

Lastly, there is the Obama administration's granting of close to 120 waivers -- so far -- for corporations like McDonald's, allowing them to continue offering so-called "mini-med" plans that violate the new law by offering sharply limited coverage. Senator Jay Rockefeller (D- W. Virg.) has announced that the Senate Finance Committee will hold hearings exploring the administration's decision to grant those waivers on December 1st.

Most Republicans acknowledge privately - and some have even dared to admit publicly - that barring an unbroken and unlikely string of legal victories, including at the U.S. Supreme Court, the Obama health care law, or at least segments of it, will endure for some time to come. That's because Democrats still control the Senate, albeit narrowly, and President Obama still wields his veto pen in the Oval Office. That leaves Republicans with the option of waging asymmetrical warfare against the law, holding one, two, many hearings in the hope of wearing down the administration and its chief witnesses.

"We may not be able to bring about straight repeal in the next two years, and we may not win every vote against targeted provisions," Sen. McConnell told Fox News on November 4. "But we can compel administration officials to attempt to defend this indefensible health spending bill and other costly, government-driven measures."