In implementing health reform, governors are turning to unilateral action

A few parts of the health reform law require states to amend their
Gov. Mark Dayton (D) used an executive order to implement the health reform law in Minnesota. (Joles, David - AP) existing laws to reform their insurance markets. For instance, most states need to pass new laws to participate in the health exchanges that will launch in 2014.

Usually, this requires the legislature. But those efforts have often run into political opposition. In 2011, more than a dozen state-level, exchange bills failed.

That’s why governors are increasingly taking unilateral action: Earlier this week, Minnesota Gov. Mark Dayton, a Democrat, issued an executive order to allow his state to continue planning for putting the health reform law into action. Republicans in the state legislature had blocked an exchange bill, leaving it to die in committee.

Minnesota Commerce Commissioner Mike Rothman told the state's public radio station that the executive order would allow the state to "develop and plan an exchange.”

By my count, governors in five states -- Alabama, Georgia, Indiana, Rhode Island and now Minnesota-- have used executive orders to move forward on the law. And when you count states that have pursued grant money through their executive branch, that number rises to 15, according to the National Conference of State Legislatures. That includes all the medium-blue states on this map (click through for an interactive version):

Dayton is actually a bit of an anomaly: It’s mostly Republican governors who have used executive action to move forward on implementing the law. Republican legislatures that oppose the health reform law have stymied some states’ efforts toward implementation. That leaves governors with an uneasy choice: Implement a law they don’t like or watch the federal government come in and do the job itself. Georgia’s Nathan Deal and Indiana’s Mitch Daniels have landed on the latter option, issuing executive orders to allow their states to avoid federal intervention.

These executive orders likely don’t allow for full implementation of the law. Most of those states will eventually need new legislative authority to continue planning. But, in the meantime, the executive orders serve an important role: They give the states liberty to plan and pursue funding for a health exchange. If the Supreme Court rules the reform law constitutional, more are likely to take a second look at implementing the law themselves. At that point, all the groundwork being laid now via executive order could prove crucial in such a decision.