The New England Journal of Medicine has an excellent article on what’s at stake for health care reform in the upcoming mid-term elections. It’s by Henry J. Aaron, a noted health care expert at the Brookings Institution, and the article is available online without a subscription.
Here’s a summary.
Republicans are currently campaigning on the promise to repeal the Affordable Care Act (ACA). They especially dislike the requirement that everyone have health insurance (the individual mandate). They favor certain reforms of the insurance industry that are popular with the public, however, such as denying coverage for pre-existing conditions and cancelling insurance once a policy-holder gets sick. Unfortunately, you can’t have one without the other. If people without insurance could wait until they get sick before buying a policy, the insurance industry would go out of business.
There’s a perverse upside to this. If insurance companies went out of business, the government would be forced to provide an alternative form of financing, such as the public option. That’s definitely not what the Republicans have in mind.
Repeal of the ACA is unlikely as long as Obama is President. But since most on the major provisions in the bill don’t take effect until January 1, 2014, there’s ample time for opponents to repeal the bill after the 2012 elections.
Government shutdown or failed republic?
Meanwhile, there are ways to block the legislation other than outright repeal. The bill “authorizes” spending, but the actual funds need to be appropriated in bills passed by Congress. Of particular importance is a relatively small sum the Department of Health and Human Services (DHHS) needs to implement the bill’s provisions. (Emphasis added in the following quotations from the article.)
If ACA opponents gain a majority in either house of Congress, they could not only withhold needed appropriations but also bar the use of whatever funds are appropriated for ACA implementation, including the implementation of the provisions requiring individual people to buy insurance or businesses to offer it. They could bar the use of staff time for designing rules for implementation or for paying subsidies to support the purchase of insurance. They could even bar the DHHS from writing or issuing regulations or engaging in any other federal activity related to the creation of health insurance exchanges, even though the ACA provides funds for the DHHS to make grants to the states to set up those exchanges.
That would set the stage for a high-stakes game of political “chicken.” The president could veto an appropriation bill containing such language. Congress could refuse to pass appropriation bills without such language. Failure to appropriate funds would lead to a partial government shutdown.
We saw a similar showdown in 1994, when a Republican Congress tried this with President Clinton. Republicans lost the “public-relations war” in that battle, but politics is so strained these days that it’s hard to predict the outcome this time around.
Perhaps the more likely — and in some ways more troubling — possibility is that the effort to repeal the bill will not succeed, but the tactic of crippling implementation will. The nation would then be left with zombie legislation, a program that lives on but works badly, consisting of poorly funded and understaffed state health exchanges that cannot bring needed improvements to the individual and small-group insurance markets, clumsily administered subsidies that lead to needless resentment and confusion, and mandates that are capriciously enforced.
Such an outcome would trouble ACA opponents: their goal is repeal. It would trouble ACA supporters: they want the law to work. But it should terrify everyone. The strategy of consciously undermining a law that has been enacted by Congress and signed by the president might conceivably be politically fruitful in the short term, but as a style of government it is a recipe for a dysfunctional and failed republic.
On Thursday, a federal judge in Michigan ruled that the health care bill was constitutional, rejecting a challenge based on the individual mandate clause. Previous challenges had been rejected by federal courts, but only on technical grounds. This was the first claim rejected on its merits. The battle is far from over, however, and there’s an excellent chance the bill will end up before the Supreme Court.
Bottom line: If you want to avoid a government shutdown, or the “dysfunctional and failed republic” scenario, vote on November 2 for candidates who support health care reform.
Update 10/14/10:
Challenging Health Care Law, Suit Advances (The New York Times)
Another opinion – this one from Florida – on whether the challenge to health care reform can proceed up the judicial ladder.
In a foreboding ruling for the Obama administration, a federal judge in Florida decreed Thursday that a legal challenge to the new health care law by officials from 20 states could move forward and warned that he would have to be persuaded that its keystone provision — a requirement that most Americans obtain insurance — is constitutional.
“At this stage in the litigation, this is not even a close call,” wrote Judge Roger Vinson of Federal District Court in Pensacola, Fla., before asserting that the insurance mandate was an unprecedented exercise of Congressional authority.
Update 10/15/10:
Health Insurance Politics in Federal Court (The New England Journal of Medicine)
Two lawyers, with degrees in public health, assess lawsuits by various states that claim the individual mandate in unconstitutional.
Virginia federal court. In early August, federal district court judge Henry Hudson
[Virginia federal district court] Judge Hudson’s next decision, this fall, will be on the merits of the case, and as he recognizes, his decision will be appealed no matter how he rules. But health care politics will not be put on hold while we await judicial resolution, which could take years. Without mentioning the Commerce Clause or health care, many politicians will campaign on the argument that the federal government is too big, is too intrusive into our individual lives, and spends too much money. In this debate, the ACA [Affordable Care Act] will be exhibit number one.
Related posts:
Why we passed health care: WellPoint and breast cancer
The health care battle isn’t over
Civil disobedience and the individual mandate
The Supreme Court and health care repeal politics
Resources:
Image source: Zimbio
Henry J. Aaron, Ph.D., The Midterm Elections — High Stakes for Health Policy, The New England Journal of Medicine, October 6, 2010
Well, this is what health care supporters get for nominating and electing the most unqualified candidate for President perhaps in the history of the nation. A politician with more experience would never have crafted or signed into law a bill that did not fully take effect until 2014, with 2 elections in between signing and full implementation.
I also think it was stupid to pass a bill and collect taxes almost IMMEDIATELY to fund the bill when the benefits do not take effect till 2014. Talk about making Americans unhappy!!!!! Again, a more experienced politician would not have done any of that. Gives the opposing side too much time to mess things up; especially true when you knew ahead of time how vehemently the R’s are/were against the bill.
It was political suicide. I feel like saying D’s and progressives got what they deserved. But it is the people who suffer.
And now with Americans so unhappy with Ds, the chance to get universal/single payer is dead for my lifetime.
Some of the timing was out of Obama’s control. You can’t tell an industry as large as the insurance business to turn on a dime, much as one might like to. Some of the more unethical practices of the insurance industry did go into effect rapidly – denying insurance for pre-existing conditions and canceling policies when people get sick. There’s very little, however, to protect people against what insurance companies will charge. Those who can least afford it – those who are already sick or advancing in age – will find the insurance that’s available to them very expensive.
With the economy being on the brink when Obama took office, his first three priorities should have been jobs, jobs, jobs. if the stimulus had an infrastructure component it would have put people back to work quickly. But he did not do that. He also made a mistake in not making the stimulus big enough. (See Krugman this morning.) He was going to be hit by the right either way.
Better to go all out and maybe (most likely) have a success, than the weak half-measures that did not work. Now he still has the right on his back, the economy is no better, and Ds will be thrown out in November.
On health care, in this economy, he should have taken little baby steps: pre-existing, denying care, portability; things like that. Things people care about and understand. An entire massive overhaul played right into the Rs hand.
Seems like there are infrastructure projects in my part of the country in every direction I drive. But those, by nature, take time to get started. They were quick to put up the orange signs saying they were coming.
Obama wanted everyone to have health insurance. We’re the only developed country that doesn’t have that. Other countries look at us and shake their heads in disbelief. But we have a very different past than other countries.
From the rhetoric, it sounds like it’s not just Democrats, but incumbents in general who are going to be thrown out in November. I’m not sure how much better a bunch of newbies can do, but it will certainly send message. The public is disgusted with what happens in Washington – at least to the extent they think about it. I read somewhere recently that only about 7% of the public watch the left and right cable channels that get all hot and bothered over everything.
Thanks for commenting, Roberta.
Let me qualify my statement about Obama being unqualified. It would better represent what I think if I had written “inexperienced.” His inexperience is what makes him unqualified in my opinion.
It’s true that he was inexperienced. Talk about learning on the job. I’m glad I don’t have to do it.