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From Health Reform WK-EDGE, June 1, 2015

House panel examines administrative actions in the implementation of the ACA

By Jeff Carlson

Executive actions relating to the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) may signify a critical assault on representative democracy, according to House Ways and Means Oversight Subcommittee Chairman Peter Roskam, (R-Ill), at a May 20 subcommittee hearing on the "Use of Administrative Actions in ACA Implementation." In his opening statement, Roskam said that the issue is not whether the administration is implementing the health care law; rather, it is whether the administration is undermining the rule of law.

Elizabeth P. Papez, former deputy assistant attorney general, Office of Legal Counsel, Department of Justice, told the panel that the constitutional questions that surround recent administrative efforts to implement the ACA "reflect the separation of powers among the three federal branches of government as well as the division of sovereign authority between the federal government and the states." As an example, she related to lawmakers how IRS regulations declare that the premium tax credit provision expressly directed at insurance Exchanges "created by a state" must also encompass Exchanges established by federal agencies. "The Executive Branch defends these actions as lawful efforts to implement the Act, and as appropriate responses to apparently unanticipated shortfalls in funding, state participation and private sector readiness central to the Act’s affordable care mandate. But the Constitution limits the extent to which agencies may interpret legislation to encompass or address evolving circumstances," she added.

Papez said that laws and practices that push separation of powers boundaries is exemplified in pending lawsuits in King v. Burwell and House of Representatives v. Burwell. She stated that both cases are subject to settled constitutional limits on judicial authority that may prevent certain statutory infirmities or administrative transgressions from reaching federal courts. "And even where judicial review is available, the pending ACA suits highlight why each branch has an independent obligation to adhere to separation of powers limits and scrutinize the implementation of complex legislation over time."

Jonathan H. Adler, director, Center for Business Law and Regulation Case Western Reserve University School of Law, proceeded to give lawmakers what he termed a "handful of instances" in which federal agencies entrusted with implementing the ACA have departed from the statutory text and acted in an unlawful manner. Adler said he doubted these were isolated instances, citing how Ohio Attorney General Mike DeWine brought suit against HHS for its attempt to impose taxes on state and local government health insurance plans. "Based on my initial review of the filings, I believe Ohio may have identified yet another example of unlawful ACA implementation," he added.

Grace-Marie Turner, president, Galen Institute, a nonprofit research organization focusing on patient-centered health policy reform, offered further views questioning the administration’s actions in implementing the ACA. "Many of the changes the administration has made through regulation are not based upon the language of the statute," Galen said. "The 50 changes already made to the law show that the law would have been difficult if not impossible to implement as it was written and passed." She stated that it is not the job of the administration to fix the law but to implement it as written. "The U.S. Constitution requires the Executive Branch to seek new legislation, as it has done at least 17 times with the ACA, if changes to the law are needed. I would oppose these illegal administration actions no matter who was in the White House because they undermine the rule of law," she said.

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