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More Thoughts on House Opposition to Obamacare

This blog post was written by attorney Andrew Herman. While Mr. Herman is not an attorney with Price Benowitz LLP, we are very happy to have him as a regular contributor to our blog posts. Any opinions expressed herein are solely those of the writer.

As I discussed last month, the House of Representatives’ Republican majority, as part of their vehement opposition to Obamacare, is currently focusing on the implementation of the Affordable Care Act’s health insurance marketplaces, which go live on October 1. The House Energy & Commerce Committee recently fired its initial post-recess salvos of the fall campaign.

First, on August 29, the Energy & Commerce Committee sent a letter signed by a whopping 15 members to 51 recipients of the health law’s $67 million “navigator” grants, asking for information on their work. These entities include groups like the Ohio Association of Foodbanks, the Children’s Hospital Medical Center, the National Hispanic Council on Aging and various local United Way affiliates. According to Kaiser Health News, navigators “are being trained to provide unbiased information to consumers about health insurance, the marketplace and public programs including Medicaid and the Children’s Health Insurance Program.”

The Committee’s letter, sent barely a month before these organizations are due to start assisting the public with online enrollment, demanded that the recipients meet with Committee staff before September 13 and provide voluminous documents and written answers to a variety of questions relating to implementation. The letters drew an immediate response from Democratic Ranking Member Henry Waxman, who wrote the next day to Chairman Fred Upton: “There is no legitimate predicate for these letters and no evidence of any malfeasance from any of the organizations. It is an abuse of your oversight authority to launch groundless investigations into civic organizations that are trying to make health reform a success.”

Indeed, the breadth of information requested and the extensive resources required to fully respond does seem designed to interfere with the entities’ ability to perform. Obviously, such interference, or simply a prurient desire to highlight problems with implementation, is not a valid legislative purpose for the federal branch tasked with writing laws. Moreover, no congressional committee actually possesses the ability to require written answers to interrogatories. With limited exceptions, congressional committees are limited to requesting documents and eliciting testimony at hearings. Finally, while no one ever wants to blow off a congressional letter, such a request has no greater force than a request from a private entity; only properly issued congressional subpoenas require compliance.

The second foray will take place on Tuesday, September 10, when the Committee’s Health Subcommittee will hold a hearing titled, “PPACA [Obamacare] Pulse Check: Part 2.” Here’s how the Committee’s press release describes the hearing:

“With less than a month before the exchanges are scheduled to open for enrollment, members will hear testimony evaluating the status of the law’s implementation, which has been marked by delays, missed deadlines, broken promises and special waivers. Members are concerned with the many challenges and burdens employers and states face as a result of the law. The Obama administration indicates it has only heard “isolated incidents” of the law’s negative impact on businesses, but reports show a wide array of disruptions and confusion.”

The list of invitees includes executives from a number of private entities that have received federal grants to build and implement the insurance exchanges in various states.

The description of Tuesday’s hearing reveals a Committee that appears to have already made up its mind about the implementation of the marketplaces. While the Majority’s “concerns” may ultimately be vindicated, this line of inquiry leads one to search for a valid legislative purpose for these investigations. Is the Committee planning on drafting legislation addressing the issues addressed by the hearing prior to October 1? Of course they aren’t. Even if their genuine goal were to examine fraud, inefficiencies or other implementation problems, would it not make more sense to wait for the marketplaces to go online and start offering services before examining the process? In short, both the letters and the hearing seek voluntary compliance with a Congress using the committee process to undermine both Obamacare and, more specifically, the imminent implementation of the on-line marketplaces. This is not a legitimate congressional action and should not be treated as one; particularly not by entities that should be devoting their full attention to avoiding the types of problems that Republicans so fervently hope will occur.

The answer for both the letter’s recipients and the hearing’s invitees should be a polite declination to the Committee’s requests. In the immortal words of Nancy Reagan, “Just Say No” to the House Republicans’ attempt to short-circuit health care reform before it ever starts.