Obamacare: A Congress Divided Between Implementation and Repeal

by King & Spalding

The October 1 enrollment date for the health insurance exchanges created under the Affordable Care Act (ACA) is fast approaching and, yet, Congress remains torn along party lines about whether to work towards implementing the law or make efforts to defund and repeal the law. Democrats say ACA will increase access to affordable health care for millions of Americans. Republicans point to legitimate concerns about the increased bureaucracy and higher costs for business. Nearly three and a half years after ACA was signed into law, with implementation deadlines nearing, what is clear is that many Americans still don't know what the law means for them.

ACA (affectionately or disparagingly referred to as "Obamacare" depending on what side you're on) was signed into law by President Obama on March 23, 2010. A little over two years later, in June 2012, the U.S. Supreme Court upheld its constitutionality. During the time since the law's passage, Republicans have held numerous oversight hearings on ACA and voted to repeal the law forty times in the House of Representatives. A few Republicans in the Senate have recently proposed cutting off funding for the government, threatening a government shutdown, unless Obamacare is defunded.

Republicans received some validation of their pushback on the law when, just before the Fourth of July holiday, the Obama Administration announced that implementation of the employer mandate would be delayed for one year, until 2015. The delay called into question the Administration's roll-out strategy and their earlier reports that the law's implementation was "on track." The Administration stated that the employer mandate delay was in response to feedback and concerns it had received from businesses and trade organizations. However, the Administration stressed, the employer mandate only affects a small percentage of businesses which have over fifty full-time employees and are not already providing health insurance coverage to their employees.

Democrats, for their part, at least in public hearings, have stated that they are willing to work with Republicans on fixing various aspects of the law if there are legitimate concerns with certain provisions. The Republican response, not entirely unexpected in this political climate, continues to be "repeal and replace" over compromise. Recent reports indicate that House Republicans are on track to unveil a comprehensive legislative alternative to ACA in the Fall. Although details on exactly what the plan will include have yet to emerge, Republican Study Committee Chairman Steve Scalise (R-LA) stated that, unlike Obamacare, the bill would not "put in place mandates that increase the costs of health care and push people out of the insurance that they like."

Rep. Henry Waxman (D-CA), Ranking Member of the House Energy and Commerce Committee, has referred to Obamacare as Republicans' "great white whale" because, he says, "they will stop at nothing to kill it." Republicans apparently believe this strategy will position them well for the 2014 elections, particularly with many Members facing a more serious challenge in a primary than in a general election. And while some Democrats even have criticized the roll-out of ACA as "a train wreck," they certainly have more of a political stake in seeing that the law's implementation is successful.

Reports coming out of the town hall meetings being held by Members back in their congressional districts over the August recess indicate that health care reform is front and center on the minds of many constituents. It will be interesting to see what message Members from both sides of the aisle receive on ACA over the next few weeks and what that does to change, or reinforce, their behavior once they return to Washington in September

By Lauren M. Donoghue

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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