//  5/4/17  //  Commentary

Today, the House will vote on the American Health Care Act (AHCA), which would repeal the Affordable Care Act (ACA, or Obamacare). Yet amendments to the bill were published only last night, there has been no updated score from the Congressional Budget Office (CBO), and no public hearings have been held. Many House members haven’t even seen the latest version of the bill themselves, apparently. A lot has already been said about the situation, and I just want to make three points.

First, process matters. In 2010, the House GOP created a new rule that required all bills to be posted online for three days before they are voted on. This is a good idea. It matters if people know the laws that their Representatives are voting on, but it also matters if Representatives have had three days to read and vet the text of bills they themselves are voting on. In March, the first time the AHCA was on the table, the House released a hastily drafted manager’s amendment the night before the (planned and then cancelled) vote—an amendment that leading experts Nick Bagley and Tim Jost argued would not actually accomplish the goal its proponents advocated.

Similarly for the CBO, recall that health care is complicated. Forecasting the interaction of all these provisions is difficult. On Wednesday, Sean Spicer said that “it is literally impossible” to predict the AHCA’s effects. Yet somehow Speaker Paul Ryan seems fairly confident that the AHCA will both promote competition in the exchanges and lower premiums. We have an expert agency that could help resolve this issue – but only if we cared to hear from it. Helpfully, a CBO score will be required for the Senate to pass the bill through reconciliation, as in that event the CBO must certify that the bill meets certain cost saving requirements. At that point, the House would know the full impact of its actions.

Second, promises matter. Trump promised “insurance for everybody,” and Secretary Price said that “nobody will be worse off financially.” But the last CBO score had the bill taking insurance away from 24 million Americans. Trump promised he wouldn’t cut Medicaid. But the AHCA cuts it by $880 billion and covers 14 million fewer people. As recently as Sunday, Trump “guaranteed” he’d protect coverage for pre-existing conditions. But the AHCA allows states to waive those protections. If this bill becomes law, these will no longer be abstract numbers and speculative claims. They will be people – people who’ve lost their coverage, and who will know who’s to blame for it.

Third, if this bill passes, it will be over the objections of literally every interest group. Physicians. Hospitals. Seniors. Patient groups of all kinds. They all dislike this bill. And yet it may still pass, incredibly. There are surely bills that are deeply unpopular but that are nevertheless good policy, and in such cases I hope we would laud Congress for its refusal to cave to interest group pressure. I do not think this bill is good or rational policy, but the next time interest group pressure is brought to bear on Congress – for instance, when a drug pricing bill is under consideration – and in particular where political pressure from a regulated industry is used as an excuse not to help American consumers, they would do well to remember this moment.

Tomorrow, if the bill passes, I’ll consider Secretary Tom Price’s role in implementing the bill, should it move forward through the Senate. If the bill fails, we’ll return to our regularly scheduled “uncertainty in the health insurance markets is bad” programming. 

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Fight for Contraceptive Coverage Rages in the Time of COVID-19

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

Take Care

Are There Five Textualists on the Supreme Court? If So, They’ll Rule for Transgender Workers.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

Take Care