In a recent interview on Fox News, Virginia Governor Bob McDonnell implied that his state might not set up a state insurance exchange under the Affordable Care Act. In fact, as things stand right now, he wouldn’t.

“If I had to make a decision today, we would not elect to have a state-based exchange,” he said.

But McDonnell is certainly leaving the door open for Virginia to do so. In fact, a year ago he stated that Virginia should operate its own health benefits exchange instead of defaulting to a federal exchange. And this month he indicated that he’s not willing to make the commitment one way or the other. “We’ll make it [the decision] by the 14th [of December]. If we don’t have any better information, we can’t have a state-based exchange, and we’ll join most of the other governors, including a handful of Democrats, who will opt for the federal default… we cannot have a system where they give us a price tag and limited information.”

Here’s some news for you, Bob. You aren’t allowed to set up a state health exchange in Virginia. Why? Well, on March 24, 2012, you personally signed the Virginia Health Care Freedom Act into law. And, in case you forgot what law you signed, here’s a refresher:

Code of Virginia, Section 38.2-3430.1:1. Health insurance coverage not required.

No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services where an individual is named a party in a judicial or administrative proceeding. No provision of this title shall render a resident of this Commonwealth liable for any penalty, assessment, fee, or fine as a result of his failure to procure or obtain health insurance coverage.

Note: “to require” – in a legal sense – includes the levying of penalties or fines for noncompliance.

According to Michael Cannon of the CATO Institute, in order to operate an exchange, Virginia employees would have to determine eligibility for ObamaCare’s “premium assistance tax credits.” Those tax credits trigger penalties against employers (under the employer mandate) and residents (under the individual mandate). In addition, Virginia employees would have to determine whether employers’ health benefits are “affordable.” A negative determination results in fines against the employer. These are key functions of an exchange.

Ergo, if Virginia establishes an exchange, then that law would violate state law by indirectly compelling employers and individual residents to participate in a health care system. That sort of law seems precisely what the Virginia Health Care Freedom Act exists to prevent.

Got that Governor? Your decision has already been made. Create an exchange, violate the law you signed.


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