Implementing the ACA: The Executive, Judicial and Legislative Branches Separation of Powers

Lael Keiser, Associate ProfessorUniversity of Missouri

Justin Dyer, Associate ProfessorUniversity of Missouri

Implementation: Continuation of politics

• ACA: Difficult to reform legislatively.

Federal Executive Branch:

- interprets (rulemaking) - applies law (enforcement)

State Governments: Medicaid Expansion

Executive Branch

• President (Executive Office of the President)

• Political Appointees (Secretary of HHS)

• Civil Service

What is Rulemaking?

• Proposal and adoption of regulations by public agencies

• Force of law

• Quasi legislative

Creates Public Policy -Federal regulations pre-empt state laws.

-Kaiser Family Foundation

2008- 6 regulations could result in $12 billion reduction in federal Medicaid spending.

Congress Delegated Power in ACA

• Mandatory rulemaking provisions (40)

1.Stipulate substance of rules.2. Whether consultative or rulemaking

procedures should be used.3. Deadlines

• Discretionary rulemaking provisions

1.Permit but do not require agency to issue rules.

2.Agency Head discretion

Alternatives to Rulemaking

• Interpretative Rules

• Policy Statements

• ACA also requires HHS to establish programs and procedures but does not specifically mention regulations.

Where can I find information about rulemaking?

• Unified Agenda (published in spring and fall)

- regulatory agenda: that describe regulatory actions in development. - regulatory plan: most important significant regulatory action agency reasonably expects to issue in proposed or final form.

Administrative Procedures Act

• Proposed rule published in Federal Register (Part of Unified Agenda)

• notice and comment period

• Code of Federal Regulations

What guides rulemaking?

• Content - Intent of enabling legislation

• Procedures- Administrative Procedures Act - Procedures required by Congress

Procedural Requirements (determined by Congress)

• cost benefit analysis

• Negotiated rule-making

Who pays attention?

• Interest groups

- business groups and public interest groups

• State governments

• General Public- depends

Rulemaking: Separation of Powers in Action

President

• Political Appointees

• Executive Office of the President- Office of Management and Budget

Congress

• Agency Budgets: provisions in agencies’ appropriations bills

- prohibitions on the finalization of particular proposed rules - restrictions on certain types of regulatory activity - restrictions on implementation or enforcement

• Controls authority to write rules

• Pass laws to overturn rule

• Oversight Hearings: encourage or discourage rules

• Senate Confirms Political Appointees

• Meet with agency officials

• Congressional Review Act (1996): - requires submit final rules to Congress and allows for expedited legislative procedures.

Courts

• Any person or group affected by rule can challenge rule in court.

• Can overturn rule if - unconstitutional - does not follow congressional intent - appropriate procedure not followed

Courts

• Can Order Agency to Write Rule

- example EPA and Green House Gases (MA v. EPA 2007)

Importance of Interest Groups

• Bring cases to courts

• Lobby Congress and President

• Interact with bureaucracy- informal - notice and comment period

Responsiveness to Notice and Comment

• Susan Web Yackee (2005, 2006)

• Do agencies change proposed rule in response to comments?

– when comments uniform, 72% chance agency

change rule.– when comments not uniform, 37% chance.

Major Rules in ACA

- Established of the Basic Health Program - Disproportionate Share Hospital Payment

Reduction. - Requirements for Long-Term Care Facilities - Food Labeling: Nutrition Labeling for Food

Sold in Vending Machines - Medicaid, Exchanges, and Children’s Health

Insurance Programs.

Election matters for Future of ACA

• Congress (oversight, budgets, confirmations)

• President- political appointees to agencies and judicial appointments

Implications of Court Decisions

• Commerce Clause and the ACA’s Insurance Mandate- National Federation of Independent Businesses v. Sebelius (2012)

• Preventative Coverage and the Religious Freedom Restoration Act (1993)- Burwell v. Hobby Lobby (2014)