The Enactment of the ACA and the AHCA

March 23rd, 2017

The ongoing fight in Congress over the American Health Care Act–between purist, pragmatist, and pusillanimous members–reminds me of the internecine conflicts during the enactment of the Affordable Care Act. Speaker Pelosi had to delicately balance her caucus between single-payer advocates, the pro-Life caucus, and moderate members who feared losing reelection. Indeed, the shuttle diplomacy between President Trump and the Freedom Caucus reminds me of the hand-holding and phone calls President Obama made seven years earlier.

Chief Justice Roberts’s description of the ACA’s enactment in King v. Burwell could just as well be said of the AHCA’s enactment.

Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amend- ment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947) (describing a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’”).

In the end, you’ll recall, the votes were there for the ACA.