The ACA’s Cerberus

By Kelsey Berry

Following the Midterm Elections, the fate of the Affordable Care Act in a Republican-controlled Congress has been much speculated about. Jonathan Oberlander just published a piece in the New England Journal of Medicine arguing that we should be less concerned about Congress, and more concerned about the Supreme Court’s potential to shake the foundations of the law.

Congress, he claims, may be wary to threaten popular provisions of the health care law now that many constituents have benefited from them. Even if ACA beneficiaries may not recognize that they are benefiting from the contentious law, the very methods available to Congress to dismantle the law — i.e., chipping away at specific provisions — may produce greater awareness of the law’s contents and even provoke opposition toward efforts to undermine it. Moreover, Obama’s veto power may keep the law stable enough through 2 more years of implementation that by the time we risk having a Chief Executive who opposes the law, the law’s benefits will be more entrenched and successes more obvious, further straining repeal or dismantle efforts. In short, it looks to Oberlander as if the core of the law (if not some of the peripheral provisions) is safe from Congressional action, and potentially even getting safer.

The Supreme Court, on the other hand, has the potential to rattle the very foundations of the law in King v. Burwell. Posts on Bill of Health here, here, and here have already provided some thoughtful analysis and commentary regarding this case and SCOTUSblog has a nice rundown of its details. In short, Oberlander points out that a decision from SCOTUS that prohibits subsidies from helping the uninsured in 34 states with federally run exchanges would have destabilizing effects in the marketplaces, rendering the individual mandate and employer mandate effectively moot. The ACA would continue to be a “reality” in only 16 states, unless some among the 34 states take steps to recapture federal subsidies (though few seem to be taking anticipatory action). Hence, Oberlander’s greater trepidation about the Supreme Court’s role, vs. the role of congressional Republicans in destabilizing the ACA.

Oberlander did not consider the threats to the ACA of Republican leadership in the Executive Branch – understandably because we have much nearer term challenges still playing out. However, if the ACA survives relatively intact through to the next Presidential election, what special concerns might a change in executive support raise? I’ll suggest just two — first, we might see an executive order pertaining to certain parts of the law. The enforcement of the individual mandate, for instance, stands to become an (attempted) casualty of prosecutorial discretion. Second, we might see significant changes to the Medicaid program and expansion with a Republican-appointed head of CMS – especially with regard to the program waivers states are able to get approved.

What other threats does the ACA face from an adversarial Executive Branch? Leave your thoughts in the comments.


At the conclusion of her fellowship year, Kelsey Berry was a PhD candidate in health policy and ethics at Harvard University. She holds a BA in political philosophy and neuroscience from Princeton University. Kelsey's research interests include theories of justice in global health, partiality and fairness in resource allocation, and ethical issues in the health of vulnerable populations. Kelsey was a 2014-2015 Student Fellow at the Petrie-Flom Center, during which she worked on a research project entitled "Rights and Duties Against Conditional Funding Agreements in Global Aid." The paper presents a normative argument for holding global health development assistance channeled through non-governmental organizations to standards of egalitarian justice, and assesses PEPFAR's "anti-prostitution pledge," which was challenged in a landmark 2013 Supreme Court case, relative to these standards. Kelsey's other work includes empirical research on issues in mental health policy, like assessing progress in achieving equitable insurance coverage for mental health disorders subsequent to the 2008 federal mental health parity law and the Affordable Care Act. She planned to continue such work with the Department of Health Care Policy at Harvard Medical School, and on a 2015-2016 training grant with the National Institute of Mental Health.

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