MikeLigalig.com

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MEGHAN FOLEY
OCTOBER 04, 2013


“An irony of the Patient Protection and Affordable Care Act (Obamacare) is that one of its key provisions, the individual insurance mandate, has conservative origins. In Congress, the requirement that individuals to purchase health insurance first emerged in Republican health care reform bills introduced in 1993 as alternatives to the Clinton plan. The mandate was also a prominent feature of the Massachusetts plan passed under Governor Mitt Romney in 2006. According to Romney, ‘we got the idea of an individual mandate from [Newt Gingrich], and [Newt] got it from the Heritage Foundation.’”

– Tracing the Flow of Policy Ideas in Legislatures: A Text Reuse Approach

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That irony led John Wilkerson of the University of Washington and his colleagues David Smith and Nick Stramp to study the legislative history of the health care reform law using a text-analysis system to understand its origins.

Scholars rely almost exclusively on floor roll call voting patterns to assess partisan cooperation in Congress, according to findings in the paper, Tracing the Flow of Policy Ideas in Legislatures: A Text Reuse Approach. By that standard, the Affordable Care was a highly partisan bill. Yet a different story emerges when the source of the reform’s policy is analyzed. The authors’ findings showed that a number of GOP policy ideas overlap with provisions in the Affordable Care Act: Of the 906-page law, 3 percent of the “policy ideas” used wording similar to bills sponsored by House Republicans and 8 percent used wording similar to bills sponsored by Senate Republicans.

Excluding “markup” bills, or amendments and legislative rewrites, 11 percent and 28 percent of policy ideas came from Congressional and Senate Republicans, respectively. For example, a proposal for nursing home transparency made by Republican Sen. Chuck Grassley of Iowa in March 2009 eventually appeared in the the health care reform law’s language.

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Still, Republican opposition of the Affordable Care Act has become standard party position. Some have argued the law is a “jobs killer.” Others have said that the Founding Fathers would not approve it; Sen. Orrin Hatch wrote in The Hill that that to come to “any other conclusion” than that the mandate is unconstitutional “requires treating the Constitution as the servant, rather than the master, of Congress.” Still, others — including Mitt Romney, who passed an individual insurance mandate as governor of Massachusetts — have asserted that Obamacare is an “unconstitutional power grab from the states.”

When President Obama signed the health care reform into law on March 23, 2010, fourteen state attorneys general filed lawsuits against the law’s requirement that most Americans purchase health insurance on the grounds that it was unconstitutional, even though the idea had been central to the GOP’s health care reforms for two decades.

In response to the legal opposition, Erwin Chemerinsky, the dean of the law school at the University of California at Irvine, told The New York Times, “There is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.” And, indeed, in July 2012, Chief Justice John Roberts sided with Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, and Elena Kagan in deciding the law as a valid exercise of Congress’s power to tax.

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But central to the arguments surrounding the Affordable Care Act is the question of whether health care, and specifically affordable health care, is a right or a privilege.

After this week’s stalemate in Washington over a continuing resolution that would fund the federal government into the next fiscal year, with Republicans and Democrats clashing over the funding of the Affordable Care Act, it may seem surprising that some congress members are veering away from the party line. Republican Rep. Darrell Issa of California has suggested via Twitter that Americans should be offered the same benefits that Congress has.

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This system is similar to the Affordable Care Act in that it will set up a marketplace for private insurers to compete for customers’ business. Insurers who participate in the FEHBP marketplace are also prohibited from excluding those with pre-existing conditions, must accept applicants “without regard to age, race, sex, health status, or hazardous nature of employment,” and charge all applicants the same premium for a given plan, just like Obamacare.

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