Unit 3B – The Executive & Judicial Branches Day 6: Structure of Judiciary & Jurisdiction
Implementing the ACA: the Executive, Judicial and Legislative Branches
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Transcript of Implementing the ACA: the Executive, Judicial and Legislative Branches
Implementing the ACA: The Executive, Judicial and Legislative Branches Separation of Powers
Lael Keiser, Associate ProfessorUniversity of Missouri
Justin Dyer, Associate ProfessorUniversity of Missouri
Implementation: Continuation of politics
• ACA: Difficult to reform legislatively.
Federal Executive Branch:
- interprets (rulemaking) - applies law (enforcement)
State Governments: Medicaid Expansion
Executive Branch
• President (Executive Office of the President)
• Political Appointees (Secretary of HHS)
• Civil Service
What is Rulemaking?
• Proposal and adoption of regulations by public agencies
• Force of law
• Quasi legislative
Creates Public Policy -Federal regulations pre-empt state laws.
-Kaiser Family Foundation
2008- 6 regulations could result in $12 billion reduction in federal Medicaid spending.
Congress Delegated Power in ACA
• Mandatory rulemaking provisions (40)
1.Stipulate substance of rules.2. Whether consultative or rulemaking
procedures should be used.3. Deadlines
• Discretionary rulemaking provisions
1.Permit but do not require agency to issue rules.
2.Agency Head discretion
Alternatives to Rulemaking
• Interpretative Rules
• Policy Statements
• ACA also requires HHS to establish programs and procedures but does not specifically mention regulations.
Where can I find information about rulemaking?
• Unified Agenda (published in spring and fall)
- regulatory agenda: that describe regulatory actions in development. - regulatory plan: most important significant regulatory action agency reasonably expects to issue in proposed or final form.
Administrative Procedures Act
• Proposed rule published in Federal Register (Part of Unified Agenda)
• notice and comment period
• Code of Federal Regulations
What guides rulemaking?
• Content - Intent of enabling legislation
• Procedures- Administrative Procedures Act - Procedures required by Congress
Procedural Requirements (determined by Congress)
• cost benefit analysis
• Negotiated rule-making
Who pays attention?
• Interest groups
- business groups and public interest groups
• State governments
• General Public- depends
Rulemaking: Separation of Powers in Action
President
• Political Appointees
• Executive Office of the President- Office of Management and Budget
Congress
• Agency Budgets: provisions in agencies’ appropriations bills
- prohibitions on the finalization of particular proposed rules - restrictions on certain types of regulatory activity - restrictions on implementation or enforcement
• Controls authority to write rules
• Pass laws to overturn rule
• Oversight Hearings: encourage or discourage rules
• Senate Confirms Political Appointees
• Meet with agency officials
• Congressional Review Act (1996): - requires submit final rules to Congress and allows for expedited legislative procedures.
Courts
• Any person or group affected by rule can challenge rule in court.
• Can overturn rule if - unconstitutional - does not follow congressional intent - appropriate procedure not followed
Courts
• Can Order Agency to Write Rule
- example EPA and Green House Gases (MA v. EPA 2007)
Importance of Interest Groups
• Bring cases to courts
• Lobby Congress and President
• Interact with bureaucracy- informal - notice and comment period
Responsiveness to Notice and Comment
• Susan Web Yackee (2005, 2006)
• Do agencies change proposed rule in response to comments?
– when comments uniform, 72% chance agency
change rule.– when comments not uniform, 37% chance.
Major Rules in ACA
- Established of the Basic Health Program - Disproportionate Share Hospital Payment
Reduction. - Requirements for Long-Term Care Facilities - Food Labeling: Nutrition Labeling for Food
Sold in Vending Machines - Medicaid, Exchanges, and Children’s Health
Insurance Programs.
Election matters for Future of ACA
• Congress (oversight, budgets, confirmations)
• President- political appointees to agencies and judicial appointments
Implications of Court Decisions
• Commerce Clause and the ACA’s Insurance Mandate- National Federation of Independent Businesses v. Sebelius (2012)
• Preventative Coverage and the Religious Freedom Restoration Act (1993)- Burwell v. Hobby Lobby (2014)