//  6/9/17  //  Commentary

The biggest story in law right now may be James Comey and his testimony before the Senate Intelligence Committee. But while attention is drawn to Comey’s very public hearing, something else is happening, largely in secret. The Senate is moving forward with a health care bill that will likely take coverage from tens of millions of Americans, and that will likely cut taxes for the wealthy on the backs of the poor.

Recall that the House passed its own bill in May, a bill the CBO estimated would take coverage from 23 million Americans over a decade. The House bill would cut taxes on the wealthiest Americans by tens of thousands of dollars apiece each year, while at the same time cutting Medicaid by $834 billion over a decade. Annual premiums for seniors making $26,500 a year would rise from $1,700 under the Affordable Care Act to $16,100 under the Republican plan, and in ten states insurance premiums would exceed income for this population.

The Senate is now moving forward with its own effort, but it has been doing so largely in secret. The ACA has been widely criticized for the way it was ultimately enacted, but the ACA was passed after 79 public hearings in the Senate and 100 public hearings in the House. Both chambers debated the issue extensively, negotiated with interest groups, and made sure that all relevant stakeholders had their voices heard. The ACA is not a perfect law. But by and large, even if imperfectly, it was passed through the kind of deliberative process that is so important in the American political system.

Now, despite heavy Republican criticism of the ACA’s procedural path, the GOP-controlled Senate is moving forward with a bill that has received zero public hearings in the House[1] and zero public hearings in the Senate. Senate Majority Leader Mitch McConnell has chosen to bypass the normal committee process, avoiding the public hearings and debate that would come with that process. The full text of the House bill wasn’t available until the night before it was voted on, and the House did not wait for the CBO to score the bill before its passage. No text has yet been released publicly by the Senate. It is not acceptable—and frankly, it is quite hypocritical—for the Senate to write a landmark healthcare bill behind closed doors after criticizing the ACA’s process for years.

Process matters. As a law professor, process may matter more to me than it does to most people. But public deliberation and consultation are critical to the development and passage of thoughtful legislation. This is true for a number of reasons, but I will highlight two here.

First, neither the House nor the Senate has meaningfully engaged the interest groups that will be most affected by the legislation. Provider groups, hospital systems, patient advocacy organizations, and insurers have all come out against the Republican bill, while all of these groups were brought into discussions about the ACA early. The Republican bill, like the ACA, relies for its implementation on the cooperation of private parties. Shutting them out of the process and subjecting them to uncertainty about the government’s willingness to fulfill its commitments under the law is not the right way to ensure the success of any law the Republicans do ultimately succeed in passing.

Second, process is necessary to help lawmakers understand the effects of their legislation. The House did not seem to understand that its changes to the individual market could implicate the 150 million Americans who get their insurance through their jobs. Nor did it seem to grasp the relationship between the many different provisions regulating insurance markets: essential health benefits requirements, community rating, and guaranteed issue are all necessary, in combination, to protect Americans with pre-existing conditions. Open, deliberative process in which experts can view the text of a bill—or at least consider specific policy proposals and respond to those proposals in a public forum—is key to minimizing misunderstandings like these, which the CBO estimated may destabilize the nation’s insurance marketplaces for up to one-sixth of Americans.

No member of Congress who has voted for this bill in the past, or who will vote for it in the future, gets to be shocked by the results. They are not allowed to be surprised when patients with pre-existing conditions are unable to obtain insurance, or private insurers withdraw from the individual market, or the ramifications of the bill are felt throughout employer-sponsored insurance.

The President, who repeatedly promised throughout the campaign that he would not cut Medicaid, cannot claim to be surprised when 14 million lose insurance through that program alone and when state budgets are strained by the impact of the per capita caps. This is the path they are choosing—and they should carefully consider whether it is the right one for America.   



[1] Only two committee markups were held, both without witnesses or significant debate.

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.

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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.

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