What Brookings Experts Are Saying about Obamacare’s Fate in a GOP-Controlled Congress

The 114th Congress that was elected in the recent midterm elections will be led by Republicans in both the House and the Senate. What will the impact of this result be on the Affordable Care Act in 2015 and beyond? Brookings experts offer their views.

Three areas in health to watch for

Kavita Patel, a physician and managing director of clinical transformation in the Engelberg Center for Health Care Reform, explains the three main areas to watch when it comes to Republican control of Congress: dismantling the Affordable Care Act; Medicaid expansion (“the continuing lack of expansion in certain states is actually much more problematic than the nation realizes,” Patel says); and new ideas for improving our health care system (a “smart GOP majority should concentrate on ways to improve our current system beyond the law”).

On coming attempts to repeal parts of or all of the ACA, Patel notes that one of the most compelling reasons the Senate may see to not repeal ACA entirely is “that a number of private sector companies are reaping the rewards of the ACA.” She expects “bipartisan issues such as the medical device tax and the independent payment advisory board (IPAB) to be more vulnerable, but insurance subsidies, the individual mandate, and Medicaid expansion will be much more difficult to amend.”

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State action more important than federal

Senior Fellow Stuart Butler argues that with filibuster rules in the Senate and presidential veto power, “the notion that a full repeal bill could pass the Senate, let alone be signed into law, is unthinkable.” Instead, he says the Halbig v. Burwell case, which the Supreme Court will hear next year, could be “quite a body blow” to the ACA if it strikes down federal insurance subsidies in states with federal exchanges. Butler also points to actions at the state level that will be “far more important” to the future of the ACA, including private employer exchanges and Section 1332 of the law, which allows states, beginning in 2017, to ask for waivers from the law’s central features.

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On the Halbig v. Burwell case

Senior Fellow Henry Aaron, the Bruce and Virginia MacLaury Chair, was a guest on WBUR’s On Point to discuss the Halbig case, which rests on a strict interpretation of the ACA’s text that only individuals using state-run exchanges are eligible for tax subsidies, but not those in states which chose the federal government to run their health exchange. He said:

One can and should in my view read the law in its totality. The law does refer to exchanges established by a state but then says that the Secretary [of Health and Human Services] has the authority to set up “such Exchanges.”  If “such Exchanges” doesn’t mean the same thing, I don’t know what does, and a number of judges have reached that conclusion.

It’s really impossible to find anybody that thought that the federal exchange, back at the time the law was passed, … wasn’t going to be able to offer subsidies. And if anyone didn’t expect that a number of states would take the option of letting the feds do it they had to be living in a cave because the governors of Florida, of Texas, of Wisconsin, and of a number of other states were quite clear in their opposition to the law.

Listen (Aaron at 17:00):

(Aaron will also appear on C-SPAN’s Washington Journal this Friday morning, at 8:15 a.m., to discuss the matter.)

Medical device tax primer

Greg Daniel, managing director for evidence development and innovation with the Engelberg Center, offers a primer on the medical device tax—an object of bipartisan opposition and one feature of the ACA that presumed next Senate Majority Leader Mitch McConnell (R-KY) has said will be a top target for the next Congress. The tax was designed to raise revenue to offset the cost of providing health coverage to millions more Americans through ACA, but the medical device industry, with large concentrations in California, Massachusetts, New York, and Minnesota, “has led a full court press effort to repeal the tax.”

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Arkansas’ Medicaid private option pilot

Keith Fontenot and Caitlin Brandt focus on Arkansas’ Medicaid private option pilot project, and explain how the state’s innovative program has led to improvements across a range of key indicators. However, with the election of a Republican governor (Asa Hutchinson) who has opposed the Affordable Care Act, the program will be vulnerable during future state budget negotiations. Fontenot and Brandt argue that, given the promising results thus far, “the program needs to continue to fully understand the results” and that other states should test the approach.

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Visit our archive of research and commentary on the Affordable Care Act.