Friday, October 5, 2012
Two vaguely related thoughts this week on the future of the ACA (and apologies for the delayed post, I was participating in the wonderful Health Law Grand Rounds at Indiana University McKinney School of Law - and many thanks to my co-bloggers for being excellent hosts!).
First, when I present my co-authored Medicaid post-mortem paper forthcoming in B.U. L. Rev., I find I am frequently asked "what could a President Romney do to dismantle the ACA if he can't repeal it?" An incisive answer to this question was posted recently by Tim Jost over at the Health Affairs Blog. While I generally agree with Tim that it is very hard for the President to change the law without some kind of joint action by Congress (because, of course, that's our grand design), I feel less confident that the President can't undermine a law by method of non-enforcement. The President guides the priorities of the agencies responsible for enforcement of the various aspects of the law, and it would be possible to have atrophy by non-enforcement, especially for the federal spending program changes (Medicare, Medicaid expansion, funding of federally qualified health centers, family planning, etc.). So, while I would be genuinely surprised if the law were repealed, that does not mean it could not be at least partially neutralized by other means.
Second, the big news in ongoing ACA litigation this week was the Court's request for the opinion of the Solicitor General as to whether Liberty University's challenge should be rendered moot by NFIB. Lyle Denniston at SCOTUSblog summarized the questions thus:
The Supreme Court opened its new Term on Monday by asking the federal government to offer its views on whether the way should be cleared for new constitutional challenges to the federal health care law — including a new protest against the individual mandate that the Court had upheld last June. The request for the government’s views came in response to a rehearing request by a religious-oriented institution, Liberty University in Lynchburg, Va. The university’s earlier petition was simply denied in June, so it asked the Court to reconsider and wipe out a lower court ruling in order to revive the university’s religious challenges to both the individual mandate and the separate insurance coverage mandate for employers.
The rest of the post does a nice job of explaining why this may be nothing or everything; what's most notable is that the Court held the petition for rehearing all summer rather than summarily disposing of it, which would be more usual. Also, Liberty University has raised the question of the employer insurance "mandate" (really another tax penalty), which of course was not addressed by NFIB. The Solicitor General has 30 days to respond.