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The Affordable Care Act: Facing Up to the Power of the Pen and the Purse

      Frequently captured by the slogans “Replace and Repeal” or “Defund and Delay,” the struggle over the future of the Affordable Care Act (ACA) will likely be defined by the power of the pen and the purse. In this regard, the ACA is hardly without precedent. Indeed, both the Social Security Act of 1935 and the Civil Rights Act of 1964 endured and survived constitutional challenges. A more ominous analog, the popular Medicare Catastrophic Coverage Act of 1988, succumbed to a rare and humbling repeal a short year after its enactment.
      • Rice T.
      • Desmond K.
      • Gabel J.
      The Medicare Catastrophic Coverage Act: a postmortem.
      Whatever the future holds for the ACA, it is likely to remain in the crosshairs of forces intent on its demise for some time to come. In this respect, the ACA finds itself in the difficult position of being implemented while at the same time being threatened with extinction. This communication attempts to delineate and evaluate the all-important statutory and appropriation challenges facing the ACA now and in the future.

      Statutory Challenges

      Ever since, indeed, before the signing of the ACA into law, Congress registered a total of 20 statutes designed to repeal or replace it in whole or in part (Table 1). Among the latter, the pointedly titled Health Care Bureaucrats Elimination Act (S.3653) and the Medicare Decisions Accountability Act of 2010 (H.R.4985), targeted Section 3403 of the ACA (“Independent Medicare Advisory Board”).
      • Jost T.S.
      The Independent Payment Advisory Board.
      A similarly targeted approach, one making use of the “Joint Resolution” mechanism (S.J.RES.39) to repeal Section 1251 (“Preservation of Right to Maintain Existing Coverage”) of the ACA also was defeated. With the exception of 3 (defeated) Senate Amendments and the aforementioned Joint Resolution, none of the bills in question has made it out of committee and onto the floor of the House or the Senate.
      Table 1Statutory Challenges to the ACA Since Its Enactment
      BillSponsorDateTitle
      H.R.4901Rep. Jerry Moran (R-KS)3/22/2010To repeal the Patient Protection and Affordable Care Act
      Statute to repeal the ACA.
      H.R.4903Rep. Michele Bachmann (R-MN)3/22/2010To repeal the Patient Protection and Affordable Care Act
      Statute to repeal the ACA.
      H.R.4910Rep. Dan Burton (R-IN)3/22/2010To repeal the PPACA & enact the Empowering Patients First Act
      Statute to repeal and replace the ACA.
      S.3147Sen. David Vitter (R-LA)3/22/2010Patient Choice Restoration Act
      Statute to repeal the ACA.
      S.AMDT.3553Sen. David Vitter (R-LA)3/22/2010To repeal the government takeover of health care
      Statute to repeal the ACA.
      S.3152Sen. Jim DeMint (R-SC)3/23/2010A bill to repeal the PPACA
      Statute to repeal the ACA.
      H.R.4919Rep. Connie Mack (R-FL)3/24/2010To repeal the Patient Protection and Affordable Care Act
      Statute to repeal the ACA.
      H.R.4985Rep. David P. Roe (R-TN)3/25/2010Medicare Decisions Accountability Act of 2010
      Statute to repeal targeted section(s) of the ACA.
      H.R.4972Rep. Steve King (R-IA)3/25/2010To repeal the Patient Protection and Affordable Care Act
      Statute to repeal the ACA.
      H.R.5005Rep. Parker Griffith (R-AL)4/13/2010To repeal the Patient Protection and Affordable Care Act
      Statute to repeal the ACA.
      H.R.5073Rep. Paul C. Broun (R-GA)4/20/2010To repeal the PPACA … enact the OPTION Act of 2009
      Statute to repeal and replace the ACA.
      H.R.5216Rep. W. Todd Akin (R-MO)5/05/2010To repeal the Patient Protection and Affordable Care Act
      Statute to repeal the ACA.
      H.R.5424Rep. Wally Herger (R-CA)5/27/2010Reform Americans Can Afford Act of 2010
      Statute to repeal and replace the ACA.
      H.R.5433Rep. Doc Hastings (R-WA)5/27/2010To repeal certain provisions of the PPACA relating to … 
      Statute to repeal targeted section(s) of the ACA.
      H.R.5802Rep. Fred Upton (R-MI)7/20/2010To repeal a provision of the PPACA providing for … 
      Statute to repeal targeted section(s) of the ACA.
      S.3653Sen. John Cornyn (R-TX)7/27/2010Health Care Bureaucrats Elimination Act
      Statute to repeal targeted section(s) of the ACA.
      H.R.5936Rep. David G. Reichert (R-WA)7/29/2010Restoring Assistance for Families' & Seniors' Health … 
      Statute to repeal targeted section(s) of the ACA.
      S.AMDT.4595Sen. Bill Nelson (D-FL)8/05/2010To exempt … reporting provisions of the PPACA
      Statute to repeal targeted section(s) of the ACA.
      S.AMDT.4596Sen. Mike Johanns (R-NE)8/05/2010To repeal the requirements for payments of $600 … 
      Statute to repeal targeted section(s) of the ACA.
      S.J.RES.39Sen. Michael B. Enzi (R-WY)9/21/2010A joint resolution … grandfathered under PPACA
      Statute to repeal targeted section(s) of the ACA.
      ACA=Affordable Care Act; PPACA=Patient Protection and Affordable Care Act.
      low asterisk Statute to repeal the ACA.
      Statute to repeal and replace the ACA.
      Statute to repeal targeted section(s) of the ACA.
      For the remainder of the term of the 111th Congress and the tenure of the 112th Congress, an outright repeal of the ACA is unlikely in the face of an override-proof veto by President Obama. In a word, the statutory route is unlikely to yield a major revision of the ACA for the duration of this presidential term. It is far more likely that targeted bipartisan modifications of the ACA will carry the day. In a partial effort to make this shift, the Senate set out to repeal or modify Section 9006 of the ACA (“Expansion of information reporting requirements”), now deemed unworkable by both parties. Although the relevant Senate Amendments (4595 and 4596) proved unsuccessful, largely due to persistent partisanship, it is likely that Congress will revisit this recognized shortcoming of the law. As articulated by Senate Minority Leader McConnell (R-KY): “This is an issue that's not over. We are going to keep revisiting the flaws in the coming years.”
      • McCarthy M.
      GOP healthcare repeal bid blocked.
      Not to be outdone by the flurry of federal activity, 40 state legislatures are in pursuit of statutes opposing one or another element of the ACA.
      • Cauchi R.
      State legislation challenging certain health reforms, 2010. National Conference of State Legislators.
      Among those, a total of 30 states are considering ACA-nullifying amendments to their constitution. Three of those—Arizona, Colorado and Oklahoma—voted on constitutional ballot questions on November 2, 2010. Voters in Arizona and Oklahoma (but not Colorado) passed the measure. Perhaps the best known ACA initiative is Virginia's Health Insurance Coverage Not Required Act, which is now at the core of the Commonwealth of Virginia v. Sebelius.
      Health Insurance Coverage Not Required.
      Also of note is Missouri's “Freedom of Choice in Health Care,” a state law approved by ballot referendum by a wide margin (71%).
      • Cauchi R.
      State legislation challenging certain health reforms, 2010. National Conference of State Legislators.
      Although state nullification laws are largely symbolic given the Supremacy Clause (Article VI) of the US Constitution, broad state opposition could ultimately play a role in federal decision-making by raising questions as to the feasibility or wisdom of enforcing the ACA in part or in whole.

      Appropriation Challenges

      Eliminating any doubts as to their intentions, opponents of the ACA repeatedly have enunciated their commitment to apply the power of the purse to the cause. Speaking to the Cincinnati Enquirer Editorial Board, House Republican Leader John A. Boehner (R-OH) stated, “They'll get not one dime from us. Not a dime. There is no fixing this.”
      • Bradley E.
      John Boehner: I'll kill health care law.
      Living up to this pledge, Rep. Boehner affixed his signature to DeFundIt.org, a 501(c) group dedicated to depriving the Administration of appropriation to implement the ACA.
      As a matter of course, defunding targets will include the spending authorizations built into the ACA. As written, the ACA is home to a total of 64 specific authorizations totaling $107 billion. Also included are 51 unspecified general authorizations for “such sums as necessary” through 2019. With the exception of the authorization of $1 billion to the Department of Health and Human Services (DHHS) towards the implementation of the ACA (Section 1005), most of the authorizations are programmatic in nature. Viewed this way, efforts to defund the ACA going forward are best seen as an opportunistic piecemeal process akin to a death by a thousand cuts.
      One approach to defunding the ACA calls for withholding financial support from implementing agencies such as the DHHS. However, it remains uncertain whether constraining the DHHS will materially hamper the implementation process. After all, the last 6 months have seen a flurry of hiring as well as significant regulatory activity at DHHS in the absence of any additional funding. Some of the same applies to the Internal Revenue Service, for which no funds have been authorized by the ACA. It would thus seem that adversaries would be better served by targeting programmatic facets of the law. For example, defunding efforts might focus on the Independent Medicare Advisory Board (Section 3403), the Patient Centered Outcomes Research Institute (Section 6301), or the state grants designed to create insurance exchanges (Section 1311) to mention a few possibilities. Constraining the expansion of Medicaid enrollment, a process contingent upon substantial state appropriations, may prove particularly disruptive. Similar conclusions can be reached with respect to the $5 billion early-retiree program (Section 1102) designed to help employers insure too-young-for-Medicare retirees. The aforementioned notwithstanding, it must be clear to friend and foe alike that popular elements of the ACA (eg, high-risk insurance pools) will prove politically difficult to defund and as such may be off limits.
      The legislative mechanics of defunding are complex and varied. One likely approach to be employed is the institution of appropriation “riders” (legally binding provisos) prohibiting the use of public funds in the implementation of the ACA. Such prohibition could apply to the lofty goal of forming health insurance exchanges or to the mundane (if critical) tasks of writing and issuing regulations. Coupling the funding of elements of the ACA to controversial targets such as abortion also might be attempted. Even the Reconciliation Process used to bypass a likely Senate filibuster could come to the fore
      • Haberkorn J.
      GOP ready to rumble on health law.
      in a manner akin to that used to pass the ACA itself. Whatever the strategy, defunding efforts are likely to force a showdown between Congress and the Administration, including the prospect of a partial government shutdown.
      The midterm “Pledge to America” makes it plain that repealing and replacing the “government takeover of health care” is a central tenet of the Republican agenda for the duration of the 112th Congress.
      A Pledge to America The 2010 Republican Agenda.
      It does not help that a significant proportion of Americans now favor repeal of the ACA.
      Rasmussen Reports
      Health care law: 46% See health care repeal as likely, 44% don't.
      Faced with the aforementioned challenges, as well as with reluctant state partners and health insurance plans, the ACA is in for some strong headwinds for some time to come.

      References

        • Rice T.
        • Desmond K.
        • Gabel J.
        The Medicare Catastrophic Coverage Act: a postmortem.
        Health Aff. 1990; 9: 75-87
        • Jost T.S.
        The Independent Payment Advisory Board.
        N Engl J Med. 2010; 363: 103-105
        • McCarthy M.
        GOP healthcare repeal bid blocked.
        CongressDaily. September 29, 2010; (Accessed November 17, 2010)
        • Cauchi R.
        State legislation challenging certain health reforms, 2010. National Conference of State Legislators.
        (Accessed November 17, 2010)
      1. Health Insurance Coverage Not Required.
        (§ 38.2-3430.1:1) (Accessed October 7, 2010)
      2. Commonwealth of Virginia v. Sebelius.
        (Civil Action No. 3:10-cv-00188-HEH) (Accessed November 17, 2010)
        • Bradley E.
        John Boehner: I'll kill health care law.
        The Cincinnati Enquirer. September 8, 2010; (Accessed November 17, 2010)
        • Haberkorn J.
        GOP ready to rumble on health law.
        Politico. October 4, 2010; (Accessed November 17, 2010)
      3. A Pledge to America.
        http://pledge.gop.gov/
        Date: September 22, 2010
        (Accessed November 17, 2010)
        • Rasmussen Reports
        Health care law: 46% See health care repeal as likely, 44% don't.