Preempting the Courts: Proposed Bill Seeks to Cut, Freeze ACA Spending

This Post was Originally Published on the Mintz Levin: Health Law & Policy Matters Blog 

Written by Jared Alves and Kevin Kappel

House Subcommittee Chairman Rehberg (R-MT) unveiled his draft Labor, Health and Human Services, and Education appropriations bill that would cut $2.4 billion from 2011 funding levels, on Thursday. While the Chairman contends that it will “balance critical funding for programs that actually help people and families with the real need to rein in government over-spending,” Ranking Member DeLauro (D-CT) lambasted it for “inject[ing] a whole host of new, contentious legislative issues into the process.” Although the bill is not scheduled for a markup, it contains several notable health care provisions.

The most contentious health care provision would freeze $8.6 billion in previously authorized funding for portions of the Affordable Care Act (ACA) until courts resolve all challenges to their legality, but the freeze would not affect certain Medicare and Medicaid provisions. In addition, it would prevent federal funding for Planned Parenthood and other organizations that provide abortions, and would eliminate funding for the Title X family planning program. Other cuts include $200 million from Health and Human Services, as compared to 2011 levels, but the National Institutes of Health would see funding rise by 3.3% to $31.7 billion. While the bill is unlikely to reach the President’s desk, it could set the tone for the ongoing appropriations debate and inject another thread into the health care reform saga.

That saga could be poised for its final showdown, with the Obama Administration on Wednesday asking the Supreme Court to review the constitutionality of the legislation. This move comes after the 11^th Circuit Court of Appeals struck down a key provision of the law in August, in contrast to the 6^th Circuit Court of Appeals, which upheld the law last June.  And the 4^th Circuit Court of Appeals dismissed challenges as premature. The Administration is seeking resolution of this circuit split.

The root of the controversy is the  mandate that individuals have health insurance or pay a fine. The original complaint filed by 26 attorney generals and the National Federation of Independent Businesses objects to the Administration’s argument that the Commerce Clause of the Constitution permits such a requirement. If the Justices hear the case, a decision is expected to come in the midst of the Presidential election, with likely significant consequences for candidates across the divide. Still, a ruling may not be as definitive as many hope, as the Court could, like the 4^th Circuit, delay deciding on the mandate until enforcement of the individual mandate in 2015.