On How Congress Is Handling “Obamacare”

This post was written by congressional investigations attorney Andrew Herman

Today, I happened upon the August 5, 2013, edition of William Kristol’s magazine, The Weekly Standard. Although the back page features a mildly humorous parody advertisement for a movie titled “The Adventures of Carlos Danger” (you can use your imagination), the real blockbuster is on the front page. Above the headline “Train Wreck Ahead!”, the magazine presents a cartoon depicting the President as the engineer of a coal train named “Obamacare” as it derails off a broken track. Health and Human Services Secretary Kathleen Sebelius is impaled in the train’s cow-catcher and reams of confidential documents poor out of the train as skeptical passengers look on.Inside, the magazine features not one, but five articles about the impending disaster that conservatives predict for the Affordable Care Act (ACA). These articles include: a profile of Utah Republican Senator Mike Lee, who is leading the effort to defund ACA; a discussion of the Privacy Act violations that will purportedly be created when the insurance marketplace’s go on-line; examples of how individuals may defraud the government in applying for new health care; and an examination of Obama’s constitutional violations in delaying the employer mandate until 2015 despite explicit statutory language.

As William Kristol summarizes in the issue’s lead editorial advocating for a delay in implementation: “If the exchanges are permitted to go into effect on January 1, 2014, there will be error, fraud, inefficiency, abitrariness, and privacy violations aplenty.”

Although a full examination of the magazine’s charges is well beyond my expertise, I am confident that Mr. Kristol is correct that implementation of the ACA will create the types of errors, inefficiencies and fraud that accompany all significant government programs. I have no ability to judge whether the delivery of health care to millions of previously uninsured and the promised lowering of health insurance costs for all will offset the ACA’s inevitable waste, fraud and abuse. I’m not sure even the wisest health care experts know the answer at this moment.

I can, however, predict one thing with near certainty. When Congress returns to Capitol Hill in January of next year, Republicans will come out with both guns blazing at Obamacare. Because open enrollment for the health insurance marketplaces starts on October 1 of this year and the marketplaces go online on January 1, 2014, it’s likely that reports of problems will surface just as Congress reconvenes for the new year.

Accordingly, I predict that the Republican-controlled House, with an eye on the November congressional elections, will launch an unprecedented investigative assault on the ACA’s implementation process. Indeed, such a concerted effort could involve a half-dozen House committees, including Darrell Issa’s House Oversight and Government Reform which may have tired of flacking the IRS “targeting” scandal by then. Unconstitutional conduct by the President, repeated Privacy Act violations and fraud galore would provide significant grist for the House Republican’s scandal mill. Even minor hiccups could serve as a launching pad for Republicans who have cast dozens of anti-Obamacare votes to date.

Unlike their House counterparts, the Senate Republican minority lacks the ability to issue subpoenas or hold hearings on their own and it’s unlikely that Senate Democrats would consent to such actions. Though if the ACA proves to be as big a disaster as The Weekly Standard predicts, all bets would be off as both parties eye control of the Senate in 2015. Nonetheless, through the issuance of letters or the introduction of legislation like Senator Lee’s, Senator Republicans will also seek to influence public perception and debate on Obamacare.

It’s unlikely that Congressional Republicans will confine their investigations to Administration officials (though there will be plenty of attention paid to the Centers for Medicare and Medicaid Services, the IRS and any other agency involved in the law’s implementation). Certainly, Congress will also direct its attention toward mistakes made by the health care providers that will comprise the marketplaces.

In Sunday’s Washington Post, Ezra Klein profiled “a trio of young technologists [who] have raised $40 million” and started a new on-line health insurance provider called Oscar. Remarkably, Klein notes that “Data released by [HHS] shows that a quarter of the companies applying to offer coverage in the federally run marketplaces are entering the individual insurance market for the first time.” With so many new and inexperienced entrants in the complicated area of health care problems are inevitable.

It is only a matter of time before some of these health insurers, large and small, old and new, find themselves in front of a hostile committee of Republican members of Congress with an axe to grind and upcoming elections to win. I suspect that most of these insurance executives have never faced the type of congressional onslaught that has recently given fits to veteran bureaucrats at the IRS and State Department. Even the benefits provided by the best insurance plans won’t be able to protect these individuals from the affects of that examination.