Editor’s Note: This is a submitted editorial.

By: State Rep. David Craig

Now that the U.S. Supreme Court’s decision on the Patient Protection and Affordable Care Act (PPACA or ObamaCare) has been rendered, states will begin anew to examine how or if they should implement the unpopular law (a recent New York Times/CNN poll found that only 24% of Americans wanted the whole law left in place) within their borders.  Wisconsin is no different and legislators in our state should recognize that President Obama’s signature accomplishment CAN help create jobs here in Wisconsin.  Here’s how:

When Congress passed the PPACA, it included many provisions in the law that coerced states into implementing its major provisions.  Provisions such as the mandated Medicaid expansion (now struck down by the Court), a federal insurance regulation regime and most significantly, the individual and employer health insurance purchasing exchanges were all thrown on the states for implementation.  The PPACA insurance exchanges are where the federal rules of minimum requirements are levied on health insurance companies, citizens and employers, and through which subsidies are paid to individuals based on income, and penalties are levied on businesses based on compliance.  Congress further mandated that by January 1, 2014, states should have created their exchanges and those states that failed to do so would have the federal Department of Health and Human Services create and run the exchange for them.

However, despite the flawed policies of the employer mandate and penalty, what may have been an unintentional oversight of the law’s authors could help Wisconsin and other like-minded states actually create jobs.  In its hurry to ram PPACA through the Capitol to President Obama’s desk, Nancy Pelosi and Harry Reid’s Congress failed to qualify the federally-created exchanges for the individual premium subsidy for employees and thereby also the penalty for employers’ failure to provide their employees with PPACA’s minimum insurance coverage.  In fact, if even one employee in the company were to qualify for the subsidy through the exchange, it would trigger the employer penalty, which is up to $3,000 per employee.  Realizing the provision was left out of the law, the Internal Revenue Service promulgated a rule allowing federally established exchanges to utilize the subsidy and penalty as well – despite the fact that the text of the law is clear, opening yet another avenue by which ObamaCare could be headed back to court.  But health policy experts like Michael Cannon of the CATO Institute, who are drawing attention to this ‘flaw’, note that if states fail to create or outright refuse to implement an insurance exchange, they can block the job killing employer mandate penalty of ObamaCare in their states.

This ‘flaw’ in PPACA creates an opportunity for states to give job creators the surety they need to invest in employees without fear of either the cost of minimum mandated coverage or the employer mandate penalty.  States that have implemented exchanges will relegate themselves to ObamaCare’s job killing taxes and penalties, further damaging their state economy already suffering from the Great Recession.  States like Wisconsin that have thus far not implemented PPACA’s major provisions could gain employers and jobs from states that have implemented the law because they are shielding their businesses from the job killing effects of PPACA.

Regardless of the results of the November 6^th election, all states should resist, halt or reverse implementation of this destructive law within their borders as it only exacerbates the underlying problem in the health care debate; the high cost of care.  However, if states continue to bury their businesses and citizens under the weight of PPACA, it may mean that Wisconsin legislators can help create jobs because of ObamaCare, by not implementing ObamaCare.

State Rep. David Craig represents the 83rd Assembly District, including parts of Walworth, Racine and Waukesha Counties. Rep. Craig can be contacted at Rep.Craig@legis.wisconsin.gov.