Monday, June 29, 2015

Healthcare and Hindsight

image of Protesters in favor of the ACA at the Supreme Court
Protesters in support of the ACA at the Supreme Court
Last Thursday the Supreme Court maintained the legality of the federal government’s ability through Affordable Care Act (ACA and/or Obamacare) to provide financial subsidies to help millions of Americans pay for their health insurance in the case King v. Burwell.

Supreme Court justices claimed there had been “inartful drafting” which led to the case reaching their docket. The fact that healthcare for millions of Americans was jeopardized due to the poor wording of a legal document says something about how the law was passed.

If you’ve ever read a good contract, such as one to rent property or download music, it takes the time to clarify ambiguities. This should have been clear to a legislative staffer (since Members of Congress don’t write bills) despite the epic battle for the passage of the ACA.

Why did the ACA take so long for Congress to pass?

The ACA is probably one of the most controversial pieces of legislation passed by Congress in the modern era, comparable to the Civil Rights Act of 1964 and the passions it has inspired. It’s a major legislative landmark that was in the works for decades and only passed due to a unique budgetary mechanism.

The bill’s material has been very controversial for some time. Similar legislation was first proposed by Teddy Roosevelt. Richard Nixon offered to push for a bill ultimately similar to Obamacare, but Democrats on the left were more interested in a single payer system that was as politically unfeasible then as it was in 2009. Thus, efforts should have been taken to avoid this type of case.

The way that the ACA was enacted was that it was inserted into the formal budget for Fiscal Year 2010 in a process known as budget reconciliation. At the time, this was a fall back measure in case opposition unified at an unprecedented level, which it did. Instead of quickly inserting a health care law after the budget was passed by Congress in spring 2009, Democrats in Congress ultimately wasted a year trying to pass the bill through traditional means.

This was despite the fact that Democrats barely held a 60 vote majority needed to end a filibuster and Republican opposition was largely unyielding. This is all the more galling in retrospect because so much of President Obama’s agenda had yet to be enacted. While Dodd-Frank was passed, the Employee Free Choice Act, the Dream Act, climate change, and a transportation reauthorization died in committee, and 5 years later have yet to be passed.

Ultimately what happened was that the version that initially passed the Senate was amended by the House in order to fulfill certain budgetary and financial requirements of reconciliation among with demands from various members of the House. They somehow were able to do this by adding language affecting student loans.

Did Democrats learn from past health reform efforts?

The other funny thing about Obamacare is that by many accounts, including a book called “America’s Bitter Pill” that I recommend, Obama did not take the lead in pushing the bill through Congress. To avoid the mistakes of Bill and Hillary Clinton, he deferred largely to Congress in drafting and negotiating the details.

This is in stark contrast to the effort led by Hillary whereby Democratic Congressional leaders felt left out and stymied its passage. After the bill failed, Democrats didn’t have control of Congress and the White House again until 2009, one of the many reasons there was such a fierce desire to pass the law.

But hindsight is 20/20.

If you’re wondering why Obama hasn’t tried to insert more of his legislative goals through budget reconciliation it's because in order to do so, you need Congress to pass a formal budget. This in contrast to the Continuing Resolutions that have been funding the federal government every few months for most of the time since that budget was passed.

In addition, the aforementioned book also mentions that Obama gave orders to the Department of Health and Human Services, the department in charge of implementing the ACA, to delay implementation of regulations in 2012 so that related news did not interfere with his chances of re-election. This was ultimately one of the main reasons why Healthcare.gov was not ready to be launched on schedule.


Hopefully going into the 2016, Hillary Clinton and others have learned from the failure of health care reform in 1994 as well as recent efforts.