Mixed Messages from the Federal Judiciary on the Affordable Care Act do Not Relieve the Congress of their Obligation to Fix this Law

In July, two seperate federal appeals courts issued contradictory rulings on the legality of providing subsidies to aid in health insurance affordability in states which have declined to set up exchanges under the Affordable Care Act.

A three-judge panel of the U.S. Court of Appeals for the Washington, D.C. Circuit ruled that the language in the Act indicated that the subsidies were only available in states which had established health insurance exchanges. That same afternoon, the 4^th District U.S. Court of Appeals in Richmond, Virginia handed down a ruling upholding the subsidies and indicating in the opinion that it was clearly the intent of the Congress to have the subsidies issued in every state in the Union.

Under the provisions of the ACA, states could opt to establish exhanges, which 23 have, or alternatively, the federal government would establish and operate exchanges in their stead in states which have opted not to. While most of the states which have opted not to establish exchanges have done so due to policy-maker opposition to the law, a few states, such as Delaware have done so for other reasons. Delaware entered into an agreement early in the implementation process to have the federal government substantially operate the exhange in Delaware – a decision which would place Delaware in the category of states in which subsidies are unavailable should the D.C. Court of Appeals decision be upheld.

Legal experts have indicated that, should the D.C. ruling be upheld, the provision allowing for a tax penalty for employers with 50 or more employees who do not provide health insurance to eligible employees, who ultimately receive subsidies for individual purchase, would not be enforceable. In essence, they predict that it would gut the Act.

This legislation has been rife with flaws and unintended consequences since its passage. Part of it can be blamed on the manner in which it was drafted and hurried through the legislative process by Democrats who realized that they would be losing the House majority in the 2010 elections. In fact, many observers argue that the manner in which leadership handled the legislation in the House of Representatives in 2010 is substantially to blame for the difficult environment and lack of meaningful progress in the Congress.

Unfortunately, this legislation has become totemic. By and large, Republicans in the Congress detest the legislation and seek its repeal. In fact, the United States House of Representatives has voted more than 50 times since the beginning of 2011 to repeal the Act. Democrats in the House, and in the Senate, which they still control for the time being, have responded by being exceedingly defensive and refusing to public admit the profound flaws and unintended consequences which have arisen from this legislation. Democratic leadership and many members see the protection of the Obama Administration's signature domestic policy achievement as a political imperative. This has led to a situation where one side cannot admit that there is anything right with the legislation and the other cannot admit that there is anything wrong with it.

Even a cursory review of the fashion in which the legislation was handled and passed in 2010 is enough to demonstrate just how little regard either side has for the input and rights as duly elected officials of the other.

Democratic leadership and the Administration have persisted in insisting that Americans are reaping the benefits of the law and that its popularity is on the rise. National polls suggest otherwise. A recent CNN Research poll indicates that Americans continue to oppose the law 59% to 40%. The debacle resulting from the poorly handled launch of the enrollment website, Healthcare.gov may have no dubt contributed somewhat to this sentiment; however, the fact that numerous middle class Americans and small business owners saw premiums increase substantially under the Act and the obvious impact its provisions are having on full time employment and hours worked by individual employees in a number of industries are also likely sore points.

The Democrats continue to whistle past the graveyard, while the Republicans hold out for a hoped for series of electoral victories in November which would deliver the Senate to the GOP. Even if the Republicans do gain a majority in the Senate (they will almost certainly hold the House), their majority will likely be far from cloture-proof.

According to the polling-based analysis on the Real Clear Politics site, there are 9 seats which are considered “toss-ups” with the others being either “safe” or not on the ballot. The current composition of the Senate is 53 Democrats, 2 Independents who caucus with the Democrats and 45 Republicans. Therefore, the Republicans will need to pick up six seats to gain a majority. As it stands, they are a long way from 60 votes (the number needed to end debate on a measure). Even if they gained a majority and were able to put together 60 votes to pass an ACA repeal, the president would almost certainly veto it and they would be hard pressed to get to the 2/3 (66 votes) required for a veto override.

While the House, which is currently comprised of 234 Republicans and 199 Democrats, with two vacancies, will very likely be Republican again after November, without an effective solution in the Senate, all they can do is continue to pass ineffective repeal bills in the House.

What both parties really need to do is get down to the business of fixing problems with the law. As things currently stand, health insurance premiums are on the rise for many Americans as direct result of a law that has the word “affordable” in its title; many employers are significantly reducing or eliminating full-time employment to avoid the tax penalty and small business are evaluating whether to expand their full time workforce given that adding that 50^th employee will bring their company under the provisions of the coverage mandate. There is also the problem of the curious lack of real cost containment measures in the law.

Most on either side of the debate would agree that expanding the access to affordable and quality insurance is a worthy policy goal. What upsets many who have been adversely impacted by this law is the approach taken by proponents. A hastily cobbled-together bill which was even more hastily passed was intended to rework fully one-sixth of our nation's economy. Did anyone really believe that this process would go smoothly? Perhaps, then-Speaker Pelosi, who famously remarked that they needed to pass the bill, then they would read it, should have taken the time to read it before the Congress passed it back in 2010...