The shadows now so long do grow,

That brambles like tall cedars show,

Molehills seem mountains, and the ant

Appears a monstrous elephant.

Charles Cotton[1]

[This is Larry again. We had quite a bit of push-back on the original version of this blog, and the comments were pretty snarky. Some readers complained that we used outdated and secondary references, when current, original sources were available; others said the presentation was lumpy, i.e., disorganized.

I admit the first allegation; our references badly needed to be updated, and we’ve done that this time around. But I object to the notion that the piece was disorganized. Actually it was no more chaotic than the events we tried to chronicle. As you no doubt remember, our Congress was not a pretty sight back in 2009 and 2010 when it gave us the Affordable Care Act.

And I don’t apologize for lifting passages from earlier blogs to do this one; after all, why waste a good paragraph or two if they’re still useful, especially when they’re four or more years old? Who would remember that far back? “Nobody,” one would think, but apparently our readers do. Nevertheless, you were warned. I said we would repurpose some of the earlier work, and certainly didn’t lie.

No doubt about it; Version 1 was sloppy. The subject was large, and we ran out of time to meet a deadline; so we published something that was only an early, rough draft of what it should have been. Version 2 corrects those problems. Hopefully you will agree.]

So let’s talk about healthcare again[2], and I’m still the only one willing to do it. Don’t be surprised. I specialize in the legal side of today’s political issues and the Affordable Care Act is, in the final analysis, a creature of statute. But it’s also a creature of timing; politics, reality and parliamentary procedure, and I propose to cover all those things as well. And while I’m at it, I’ll talk about mountains, mole hills, ants and monstrous elephants.

Before we get into any of that, let’s first spend a little time on the current state of health care in the U.S. Back in March of 2010 Congress passed, and the President signed two statutes that together made significant changes.[3] The new laws:

  • Established a Health Insurance Marketplace, where individuals could purchase insurance at competitive rates[4];
  • Standardized policies to provide minimum levels of coverage[5]; and subsidized premiums for people who met a “needs” test[6];
  • Required insurance companies to spend at least 80% of premium dollars on medical care and quality improvements, rather than on overhead, advertising, etc. [7]; and
  • Required them to publicly justify premiums[8] and/or some rate increases.

They did a lot of other things as well, some of them very popular. They prohibited companies from denying coverage to individuals who suffer from “pre-existing conditions”[9]; set minimum standards for preventive health care[10] , mental health and substance use disorder benefits[11]; and prohibited companies from canceling policies when the cost of treating beneficiaries exceed a “lifetime limit.”[12]

This is a very ambitious program. How in the world did Congress and the Administration ever come to agree on it?

Why Act in 2010?

Let’s start at the beginning. Why did the Administration act early and aggressively on health care? Well, because Democrats decided they couldn’t wait if they wanted to succeed[13]. They knew what happened to Bill Clinton’s health care initiative; it failed; and it did so because Clinton waited too long to propose one.[14] Clinton’s political momentum was dissipated by the time he acted, and his chances for getting anything meaningful were pretty low. President Obama didn’t want to repeat that error.[15]

In reality, the Left/Right debate about healthcare started before anything was written because, in a very real sense, statutes were irrelevant to ideologues and media pundits.[16] The Left supported universal health care as a concept, as a way to help the less fortunate among us.[17] The Right opposed it, because in their view it would lead to a centralized welfare state. To the Right, the Government already was way too involved in health care.[18] Further expansion should not be tolerated. Both sides of the pundit game saw this as a fundamental issue between them.

What Does Congress Intend, Ever?

Sure, statutes are passed by politicians, but don’t expect them to know much about what’s in the laws they make. Today’s politicians spend their time raising funds for the next campaign, managing the 24 hour news cycle, toadying up to pundits, and avoiding prosecution. Generally they leave the details of the legislative enterprise, statutory language and the like, to staff, friendly think tanks, and even friendlier lobbyists. I don’t want to be unfair, but I suspect the average Congress-person doesn’t read most bills before voting for or against them.

This can present a tricky problem for the courts. You see, once a law is passed courts are supposed to interpret it. When the law is clear, that’s not much of a problem; all a judge has to do is to give effect to the plain meaning of the statute[19]. But who litigates that kind of case? Where a statute is involved, litigants generally have some argument about what it means or how it should be applied. In those situations the courts are supposed to examine the legislative history and give effect to the Congressional intent[20], if it can be ascertained.

And how does one do that? After all, our legislators are politicians first, with lots of claims on their attention and very little time to read and study the laws they write. How can they be said to have any intent at all about this or that part of a law? Well, in point of fact the legislative process does generate quite a bit of ancillary documentation as bills make their way through Congress. There are Committee Reports, for example, plus Congressional Debates, Committee Hearings, Presidential Messages and so forth.[21] Documents like this can provide some insight into what some Members of Congress might have thought when particular legislation was passed.

So far we’ve been talking about documents that are created while a bill is being considered and before it’s enacted into law. What about after-the-fact legislative history? We’ve all seen this at one time or another. Congressman A sponsors a bill; it becomes law; but Congressman A doesn’t like the way it’s being applied. “Congress never intended that,” he says. Perhaps not, but he’s not going to prove his point simply by saying it.

His more recent statements aren’t part of the debate that led up to the legislation, and therefore are isolated from it.[22] Instead, they’re more like instructions to the courts on how to interpret existing law. But the courts, not Congress, are responsible for doing that. “It is the function of the Courts, and not the Legislature, much less a Committee of one House of the Legislature, to say what an enacted statute means.”[23]

Chaos and Situation Normal

But I digress. How, you might well ask, does any of this relate to the Affordable Care Act? Well, people on the Right wanted to stop Obama, but he was very popular at the time. So their tactic was to delay him until the political tides turned.[24] For openers House Republicans put forth their own proposal.[25] Of course, they were very much in the minority in 2009, so they didn’t have a lot of clout; but they could play for time.

But Democrats were the Republicans’ principal ally in the delay game. From the beginning, nobody seemed to know what was going on. There were a variety of proposals from the Senate the House[26] and the President, each of them more complicated than your average tax form. There were disagreements everywhere. One, for example, dealt with the question of whether reform should include a “public option,” i.e., allow the Government to directly pay for or provide medical services rather than wash everything through the private insurance market.[27]  It was all very confusing.

Some in the media compensated by avoiding the substantive questions, and focused instead on the horse race. Who’s on first, who’s winning, who’s losing, and so forth. Lots of Congress-people were interviewed, lots of opinions were given, but there wasn’t much evidence of a consensus.

This left the field wide open for ideologues, pundits who would project their own preconceptions on to the chaos, and construct paranoid scenarios to frighten us. Some went so far as to say that any health care expansion would lead to socialism (or communism), sabotage our health care system, drive doctors out of business, lead to Government-sponsored Death Panels and, more importantly, destroy American Exceptionalism.

The Senate Acts and Freezes

The legislative situation changed dramatically on Christmas Eve of 2009, when the Senate passed its own version of a health care expansion. The Senate did that by taking a House bill (H.R. 3590) it was considering at the time, totally rewriting it, and giving it a new Title (the Patient Protection and Affordable Care Act).[28] The original didn’t have much to do with health care; the final product was all about it, and ultimately became the law. How did that happen?

Well, the Senate and the House can’t pass legislation simply by throwing proposals back and forth. In the end they have to agree. Article I, Section 7 of the U. S. Constitution provides, in part:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated …

In practice the Senate and House versions must be identical.[29] When the two houses have achieved this, an “enrolled bill” is prepared, printed on parchment paper and presented to the President.[30]

Senator Kennedy of Massachusetts, a Democrat and an advocate for expanding federal health care, passed away on August 25, 2009[31]. A Democrat, Paul Kirk[32], was appointed for a short time to fill out Kennedy’s term until an election could be held.  He was later replaced by Scott Brown, a Republican, who won that election and was sworn in on February 4, 2010[33].  

This was important. At that time (and today as well) the Senate operated under rules that permitted a minority to stall legislation by debate. For the most part, debate could be cut short only by vote of 60% of the Senate, i.e., by 60 votes[34]. With the advent of Scott Brown the Democrat majority in the Senate was reduced to 59 votes, one short of the magic number.

So the situation in early 2010[35] was as follows: (i) the Democrats were firmly in charge of the House of Representatives (although they would lose their majority status in the forthcoming November elections), and could move healthcare legislation from the House without Republican support; but, (ii) while Democrats also controlled the Senate, after Scott Brown was sworn in they lacked the 60th vote necessary to overcome a Republican filibuster. In short, the Republicans could paralyze any further efforts in the Senate to legislate about health care.

The House Responds

Democrats, especially in the House, had only 4 options. They could:

  • Give up on health care legislation because they had only 59 votes in the Senate, and couldn’t get anything by the Republicans;
  • Try to convince one or more Senate Republicans to vote with the Democrats to break a filibuster;
  • In the House, simply accept the Affordable Care Act as previously written by the Senate; no further action would be required by the Senate if that occurred; or
  • Accept the Senate version, but try to make relatively minor changes to it under a parliamentary procedure known as reconciliation. Legislation subject to reconciliation does not require a super majority to pass in the Senate.

Well, the Democrats didn’t want to abandon health care, and it looked as though Republicans in the Senate weren’t going to cooperate in passing a bill. The Senate Minority Leader, Republican Mitch McConnell, had said there would be “no Senate GOP support” for that.[36] So the only real option for Democrats, if they wanted legislation in 2010, was for the House to adopt the version the Senate had already passed, and run with it. And that’s what they did.

It wasn’t easy, because the Senate bill was embarrassingly rich in pork.[37]. Why? Well, in the Senate the primary objective was to pass some sort of reform. If side deals had to be made to make that happen, then so what? A few stray provisions were of no concern unless they undercut something important. So, what the Senate had was a train leaving the station, and everybody who wanted something tried to throw it on board. It looked as if any senator who had a vote, and was going to vote the right way, got something (or many things) for his or her state, constituents, or whatever.[38]

That’s pretty much situation normal in our Congress, but the major difference this time was that the Republicans were left out. They wouldn’t deal, so they got no benefits. And, of course, that left them free to criticize the goodies the Democrats gave each other.

Nevertheless, the House of Representatives passed the Senate health care bill on a Sunday, and the President signed it on March 23, 2010.[39] The House also passed a ‘reconciliation’ bill and forwarded it to the Senate for consideration.  That legislation was most noteworthy because of the changes it made in federal grants and loans for education.  Anyway, the two houses reached agreement on that as well – no super majority was required in the Senate – and on March 30, 2010, the President signed it as the Health Care and Education Reconciliation Act of 2010.[40]

Conservative Predictions Fail

Now let’s take a look at the way it all worked out. Granted the Affordable Care Act was passed in a flurry of parliamentary maneuvering unusual even for our Congress, but the Conservatives brought that on themselves. They tried to paralyze the Senate and the entire Congress even though a clear majority of both houses wanted to go forward. What goes around, comes around, I guess.

Conservatives have voted to repeal the statute at every opportunity.[41] Perhaps you and I would wait for see some results before we condemn something new. Conservatives don’t see it that way. To them Government intervention in health care is anathema, and will steal our souls. Also, it must fail; the Government can’t do anything right. But religion and souls aside[42], it looks like Conservatives are wrong.

If the Act is predestined to fail, there’s really no reason for them to oppose it. It should fall under its own weight even without their opposition. But unfortunately for Conservatives, that’s not happening. In spite of a disastrous opening month or two, when really nobody was able to sign up, total initial enrollments exceeded expectations. On May 1 HHS reported that from October 1, 2013 to April 19 of this year:

  • Over 8 million people selected a plan through the Health Insurance Marketplace created by the Affordable Care Act.
  • 2.2 million (28%) of them were young adults between the ages of 18 and 34; 2.7 million (34 percent) were between the ages of 0 and 34.
  • Nearly 3.8 million people selected a plan during the enrollment surge in March; these included nearly 1.2 million young adults (ages 18-34), or 31 percent of the total surge.
  • Roughly 50 percent of the people who selected a Marketplace plan did so during the enrollment surge.
  • Consumer interest was high, as measured by 98 million website visits and 33 million calls to the call centers …[43]

Why do these results exceed expectations? Well, in part because outside experts, that is, the Congressional Budget Office, originally estimated that only 6 million enrollees would show up in the initial period.[44]That became the goal for planning purposes. Also, it was widely thought, for the program to support itself, large numbers of eligible young adults needed to sign up; and they did just that. The Conservative media elite predicted it wouldn’t happen and they were wrong again.

The Administration points to other significant achievements under the law. As noted earlier, the Act prohibits insurers from denying coverage to individuals who suffer from “pre-existing conditions”; sets minimum standards for preventive health care , mental health and substance use disorder benefits; and prohibits insurers from canceling policies when the cost of treating beneficiaries exceed a “lifetime limit.” In the last 4 years tens of millions of people benefitted from one or more of these initiatives.[45]

Now let’s get back to the quote we used to introduce this piece. It’s really an appropriate metaphor for the drama we’ve seen. Up to now Conservative pundits have blocked the light and made a frightening shadow show out of the politics of health care. We were made to see mountains where there were only mole-hills, and hear non-stop prophecies of doom. Good try guys!

But the Affordable Care Act is in force, now; the sun is shining, and we can see Act for what it is:  a modest (and successful) change in the healthcare market that helps others. Change didn’t destroy; it supplemented our health insurance system. And, apparently change works. Eight million newly insured customers seem to agree.

What about the Conservative ants who ran over the program shouting about doom and disaster? Well, please note they’re not really elephants, or Republicans either. Catch them after a drink or two and they’ll be the first to tell you that. They’re Conservatives first and have nothing but contempt for any Republican who doesn’t toe their line. So here’s a note for Republicans: If you don’t agree with Conservatives on everything and they make nice to you, watch out! The ants may bite.

 

 

[1] See Oxford Dictionary of Quotations (6th Edition, 2004) (henceforth, ODQ at __) at Charles Cotton, p. 244, n. 6. The ODQ describes Charles Cotton simply as an “English poet.” He lived from 1630 – 1687.

[2] Note to Our Readers: For those of you who followed the original Elemental Zoo, we’ve taken some of our thoughts from 2010 and recast them for this piece. We think this is an improvement, but you may not agree. In any case, let the record reflect that we were among the first to predict that the Senate version of health care, passed in December, 2009, was the one most likely to make it into law. See the blog of 01/29/2010, Health Care II, available at http://elementalzoo.typepad.com/elemental-zoo/2010/01/index.html

[3] See Patient Protection and Affordable Care Act, Public Law 111-148, 124 Stat. 119, et seq., (March 23, 2010), downloadable from the GPO at http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/content-detail.html . Hereafter, this will be cited as Public Law 111-148 at ___. The major companion legislation was Health Care and Reconciliation Act of 2010, Public Law 111-152, 124 Stat. 1029, et seq. (March 30, 2010), downloadable from the GPO at http://www.gpo.gov/fdsys/pkg/PLAW-111publ152/content-detail.html . Henceforth this will be cited as Public Law 111-152 at ___. In both cases these things are downloadable only on a good day. We had to try several times.

[4] See Public Law 111-148, Title 1, Subtitle D.

[5] See Public Law 111-148, Title 1, Subtitle A, amending/ adding   Sec. 2715 to the Public Health Service Act.

[6] See Public Law 111-148, Title 1, Subtitle E.

[7] See Public Law 111-148, Title1, Subtitle A, amending/ adding   Sec. 2718 of the Public Health Service Act.

[8] See, e.g., Public Law 111-148, Title1, Subtitle A, amending/adding Sec. 2794 to the Public Health Service Act.

[9] See Public Law 111-148, Title 1, Subtitle C, amending/ adding Sec. 2704 of the Public Health Service Act

[10] See Public Law 111-148, Title 1, Subtitle A, amending/adding Sec. 2713 to the Public Health Service Act.

[11] See Public Law 111-148, Title 1, Subtitle D, Sec. 1302, Essential Health Benefits Requirements

[12] See Public Law 111-148, Title 1, Subtitle A, amending Sec. 2711 of the Public Health Service Act.  See also The White House, Health Care the Works for Americans (no date), available at http://www.whitehouse.gov/healthreform/healthcare-overview

[13] See Krugman, The Conscience of a Liberal (Norton, 2007, revised 2009). Hereafter cited as Krugman at __)

[14] See Krugman at p. 233.

[15]  See CNN, Martin, Obama calls for health-care reform in 2009 (Feb. 24, 2009) available at http://www.cnn.com/2009/POLITICS/02/24/obama.health.care/index.html?_s=PM:POLITICS

[16] But wait! I repeat myself; they’re both the same.

[17] See Krugman at p. 242 -243

[18] How involved? Quite a lot. Take a look at the Social Security Amendments of 1965, Public Law No. 89-97, 79 Stat. 286 (July 30, 1965); the Balanced Budget Act of 1997, Public Law No. 105-33, 111 Stat. 251 (August 5, 1997); and the Medicare Prescription Drug, Improvement and Modernization Act, Public Law No. 108-173, 111 Stat. 2066 (December 8, 2003)

[19] See Congressional Research Service, Kim, CRS Report for Congress, Statutory Interpretation: General Principles and Recent Trends (updated August 31, 2008) at CRS-39 – 41, available at http://www.fas.org/sgp/crs/misc/97-589.pdf  In the future the CRS Report will be cited as Statutory Interpretation at __.

[20] Id.

[21] For easy access to this material, see Library of Congress, LAW.gov, Federal Legislative History, at http://www.loc.gov/law/help/leghist.php

[22] See Statutory Interpretation at p. CRS 44 – 48.

[23] Id., quoting NLRB v. Health Care & Retirement Corp., 511 U.S. 571, 582 (1994).

[24] See Associated Press, Obama may have to wait for health care passage (July 22, 2009) at http://www.courierpress.com/news/2009/jul/22/obama-may-have-wait-health-care-passage/  Want to hear the other side of it? Take a look at the video at http://www.youtube.com/watch?v=Elf4-JtZv8I

[25]  House Republicans had an alternative proposal. See Online Athens, Werner, Healthcare legislation may have to wait until next year (November 4, 2009), available at http://onlineathens.com/stories/110409/nat_512179335.shtml Joe Lieberman, the independent Senator from Connecticut, also suggested slowing down. See New York Times, Berger & Henry, Lieberman Suggests Health Care Reform May Have to Wait (August 23, 2009) at http://www.nytimes.com/2009/08/24/health/policy/24talkshows.html

[26] The New York Times, for one, made a valiant effort to describe the similarities and differences in the proposals. See the interactive tables in New York Times Politics, Comparing the Health Care Proposals (November 8, 2009) at    http://www.nytimes.com/interactive/2009/08/12/us/politics/0812-plan-comparison.html#tab=0

[27] See, e.g., U.S. News, Enzi, A Public Option Won’t Work – Government-Run Healthcare Plans Are Flawed ( July 13, 2009) at  http://www.usnews.com/opinion/articles/2009/07/13/a-public-option-wont-work–government-run-healthcare-plans-are-flawed  See also New York Times, Douthat, Republican Health Care Reform, Past and Future (July 9, 2012) at http://douthat.blogs.nytimes.com/2012/07/09/republican-health-care-reform-past-and-future/?_php=true&_type=blogs&_r=0

[28] You can find it by going to The Library of Congress, Thomas Home, Bills and Resolutions, and searching for HR 3590. You can also find it at Open Congress, http://www.opencongress.org/bill/hr3590-111/show

[29] See Johnson, How Our Laws Are Made, (2000) at XV. “A bill cannot become a law of the land until it has been approved in identical form by both Houses of Congress.” This document is available at http://thomas.loc.gov/home/holam.txt,

[30] See id. at XVII.

[31] See Legacy.com, Edward M. Kennedy Obituary (2009), at http://www.legacy.com/ns/obituary.aspx?n=edward-kennedy&pid=131914365

[32] Paul Kirk, the appointee, served from September 24, 2009 to February 4, 2010. You can find him on the Wikipedia listing of all U.S. Senators from Massachusetts, available at http://en.wikipedia.org/wiki/List_of_United_States_Senators_from_Massachusetts .

[33] You can find the Wikipedia entry on Brown at http://en.wikipedia.org/wiki/Scott_Brown

[34] See, e.g., The Daily Beast, Clymer, A Bill Fit for a Kennedy (12/19/2009) at http://www.thedailybeast.com/articles/2009/12/19/a-bill-fit-for-a-kennedy.html

[35] If you want a timeline to follow all of this, check out the one CNN put out. It’s CNN Politics, Smith, Timeline of the health care law (June 28, 2012) at http://www.cnn.com/2012/06/28/politics/supreme-court-health-timeline/index.html

[36] See CNN, Stewart, McConnell predicts no Senate GOP support for health care bill (February 28th, 2010) at http://politicalticker.blogs.cnn.com/2010/02/28/mcconnell-predicts-no-senate-gop-support-for-health-care-bill/

[37] See, Politico, Gerstein, Pork greased reform’s passage (12/22/09) at http://www.politico.com/news/stories/1209/30877.html

[38] See, e.g., Los Angeles Times, Opinion L.A., What healthcare pork looks like (December 22, 2009) at http://opinion.latimes.com/opinionla/2009/12/what-healthcare-pork-looks-like.html ; Medicare News, Pork in the Health Care Reform Bill and Medicare (December 22, 2009) at http://medicarenewsnow.wordpress.com/2009/12/22/pork-in-the-health-care-reform-bill-and-medicare/

[39] See White House, President Obama Signs Health Reform into Law (March 23, 2010) at http://www.whitehouse.gov/photos-and-video/video/president-obama-signs-health-reform-law  For the text of Public Law 111-148, see the citation at note 3.

[40] See White House, President Obama Signs Historic Health Care and Education Legislation (2010) athttp://www.whitehouse.gov/the-press-office/president-obama-signs-historic-health-care-and-education-legislation  For the text of Public Law 111-152, see the citation at note 3. I haven’t researched whether any of the Senate pork dropped out of the total package (or any House pork was added) via reconciliation.

[41] Bills were proposed to repeal or change the Act around the time it was approved.  See, e.g., HR 4529 (January 27, 2010) from Paul Ryan; and HR 4972 (March 17, 2010), from a host of Republicans. Numerous other bills have been introduced for the same purpose. See http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.4972:  Anyway, for brief history of what went on before and just after passage of the Affordable Care Act, take a look at ProCon.org, History of the Passage of the March 2010 Health Care Reform Laws (2011) at http://healthcarereform.procon.org/view.resource.php?resourceID=003712

[42] We don’t express opinions here in Elemental Zoo Two about who is damned and who’s saved. It’s against policy.

[43] I’ve heavily edited the results a bit in the interest of clarity. To see the original data, go to HHS, ASPE Issue Brief, Health Insurance Marketplace Summary Enrollment Report for the Initial Annual Open Enrollment Period (May 1, 2014), at http://aspe.hhs.gov/health/reports/2014/MarketPlaceEnrollment/Apr2014/ib_2014Apr_enrollment.pdf  Henceforth, this document will be cited as ASPE May 1 2014 Report at __.

[44] See ASPE May 1 2014 Report at p. 6. These figures count the people who have signed up for health care insurance. HHS points out that it doesn’t currently have data about “effectuated enrollment,” about how many of these enrollees are actually paying premiums. That will come later.

[45] See The White House, Fact Sheet: Affordable Care Act by the Numbers (April 17, 2014), available at http://www.whitehouse.gov/the-press-office/2014/04/17/fact-sheet-affordable-care-act-numbers

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