“NO” on American Health Care Act (H.R. 1628)

At some point, the House is expected to vote on the American Health Care Act (H.R. 1628), which would partially repeal and replace various components of Obamacare. The proposed legislation repeals a number of Obamacare provisions and contains several notable policy reforms, but the most important part of the AHCA is what it fails to include: a repeal of the regulatory architecture of Obamacare that is responsible for the rising cost of health care.

Title I of the Patient Protection and Affordable Care Act (i.e., Obamacare) lays out a number of health insurance mandates and regulations that make up the regulatory architecture of Obamacare including guaranteed issue, community rating, essential health benefits, and actuarial value, among others. While the AHCA does repeal actuarial value and partially addresses community rating by moving the age rating ratio that Obamacare imposes from 3:1 to 5:1, the bill falls far short of comprehensively addressing the overall regulatory framework of Obamacare.

Obamacare’s creators designed this regulatory framework with the intent to take control of private health insurance plans and convert them into a highly regulated, quasi-public utility. As one of the law’s supporters explained back in 2010, Obamacare’s design “transforms health insurance into a public accommodation,” and turns private health insurance into “a regulated industry … that, in its restructured form, will therefore take on certain characteristics of a public utility.” It strains credibility to characterize this bill as repealing Obamacare when the mechanisms for the federal government’s takeover of health care remain firmly in place.   

Taken together, these mandates and regulations restrict consumer choice and drive up the cost of health care premiums by a national average of 44.5 to 68 percent.  As Heritage Foundation Senior Policy Analyst in Simulations Drew Gonshorowski writes:

“Overall, accounting for gender, age, and the relative proportions of all those groups, Americans are paying 44.5-68 percent more in premiums owing just to Title I regulations. That number is even higher when factoring all the other adverse effects of Obamacare. Obamacare’s Title I regulations bid up the price of premiums drastically for many Americans. While the current House bill begins to repeal Obamacare, it does not go far enough, as many of the most damaging regulations are left in place. Alleviating this pain should be strongly considered at every step of the process.”

The AHCA would also subsidize that regulatory framework through new refundable tax credits aimed to help individuals buy their own health care plans – plans that will remain highly regulated and overly expensive. There has already been political pressure to increase those credits, and that pressure will increase so long as premiums remain high.

As Heritage Foundation Senior Research Fellow in Health Policy Studies Edmund F. Haislmaier describes:

“The key problem with the draft House health care bill is that it fails to correct the features of Obamacare that drove up health insurance costs. Instead, it mainly tweaks Obamacare’s financing and subsidy structure. Basically, the bill focuses on protecting those who gained subsidized coverage through the law’s exchange subsidies and Medicaid expansion, while failing to correct Obamacare’s misguided insurance regulations that drove up premiums for Americans buying coverage without government subsidies.”

Yuval Levin, editor of National Affairs, explains that the AHCA is “fundamentally different” from previous Republican health care proposals, including the bill introduced by now-Secretary Tom Price, “because it functions within the core insurance rules established by Obamacare, which means it can’t really achieve most of the key aims of the conservative reforms it is modeled on.”

Lawmakers cannot preserve Obamacare’s regulatory structure and claim to have repealed the law. Without including the repeal of these regulations in the AHCA, congressional Republicans will have failed to keep their seven-year old promise to fully repeal Obamacare and health insurance costs will likely continue to increase leading up to the 2018 elections.

House Republican Leadership claims the AHCA is only phase one of a three-part plan to repeal and replace Obamacare. In phase two, Human Health and Services (HHS) Secretary Tom Price will take action to address the Obamacare insurance mandates and regulations. In phase three, Republicans will pass any additional reforms they failed to achieve in phase one and two. Unfortunately it isn’t that simple. All executive action in phase two is limited, temporary, and will likely face serious legal challenges. All legislative action in phase three will require 60 votes in the Senate, including eight Democrat votes, a nearly insurmountable obstacle for Republicans to overcome.

Thankfully, Republicans in Congress have the legislative tool necessary – budget reconciliation – to fully repeal Obamacare’s regulations and avoid the political and policy complications contained within phase two and three. Some Republicans have argued Congress cannot repeal Obamacare’s insurance mandates and regulations contained in Title I through budget reconciliation because it does not have a clear budgetary impact. This is somewhat surprising considering the AHCA includes some regulatory changes while leaving others out. Regardless, this argument ignores the reality that Obamacare’s regulatory architecture imposes significant costs on taxpayers and is inseparable from the rest of the law. A January 2017 Congressional Budget Office (CBO) report left little doubt that Obamacare’s regulatory regime has budget implications.

As one former Senate staffer wrote:

“To argue that their budgetary impact is merely incidental to the rest of the law is absurd on its face. Even the Obama administration made this very argument before the Supreme Court in King v. Burwell, arguing forcefully that the regulations are inseparable from the rest of the law. Predicated on that alone, Congress has a case that full repeal through budget reconciliation is viable.”

The Wall Street Journal editorial board describes the two managers’ amendments released  Monday night as “mostly modest,” which is true because they do nothing to repeal the regulatory architecture of Obamacare.     

Republicans promised to fully repeal Obamacare, campaigned on full repeal since 2010, and voted more than 60 times to repeal parts or all of the disastrous health care law. The American people rewarded Republicans for their promise to repeal Obamacare by giving them a united government for the first time in more than a decade. An unwillingness to pursue repeal of Obamacare’s Title I insurance regulations through reconciliation based on a narrow interpretation of budget rules is not acceptable.

Unless repeal of Obamacare’s regulatory regime is included in the AHCA, the bill deserves to be defeated because it would leave the architecture of Obamacare in place and ensure health insurance premiums remain far too high.

Then-Representative Mike Pence’s description of his 2003 vote against the Bush-era prescription drug program resonates still today: “House conservatives faced a difficult choice: oppose the president we love, or support the expansion of the big government we hate.” Voting against a leadership-crafted bill was “not a sign of disloyalty, but of true loyalty to principle,” Pence explained at the time. That same principle remains true today.

Heritage Action opposes H.R. 1628 and will include it as a key vote on our legislative scorecard.        

Heritage Action Statement Opposing the AHCA
Daily Signal: Misleading Rhetoric Can’t Mask Failings of GOP Health Care Bill
Daily Signal: Capitol Hill’s Misleading Claims on Tax Credits for Health Care
Full Repeal Means Regulatory Repeal: Why Obamacare’s Regulatory Mandates Must Be Undone Permanently
Daily Signal: House Republican Health Care Bill Misses the Mark by Heritage Health Care Expert Ed Haislmaier
Daily Signal: As Republicans Debate Health Bill, Let’s Remember Why Americans Want Obamacare Repeal by Heritage Health Care Expert Ed Haislmaier
Daily Signal: Pro-Life Groups Sound Caution on Obamacare Replacement Bill
The Hill Op-ed: Voters won’t forgive Republicans if they fail to repeal ObamaCare
Op-ed: Holding Obamacare Repeal Hostage for Replace Guarantees Its Defeat by James Wallner
Op-ed: Why Obamacare’s “20 Million” Number if Fake
Daily Signal: How Tom Price Can Begin to Unravel Obamacare From Inside the Agency That Implemented It

Key Vote: “YES” on the Nomination of Scott Pruitt for EPA Administrator

This week, the Senate is expected to vote on the confirmation of Oklahoma Attorney General Scott Pruitt to be the next Administrator of the Environmental Protection Agency (EPA). Pruitt was nominated by President Donald Trump on December 7, 2016.

Attorney General Pruitt has a long and distinguished record of defending American values and prioritizing the wellbeing of American families over big government policies, which makes him an excellent choice to lead one of the largest regulatory agencies in our country. During his confirmation hearing before the Senate Committee on Environment and Public Works, Pruitt demonstrated expertise on environmental laws and championed the states’ roles in implementing those laws, highlighting the importance of cooperative federalism. Previously, he served as an Oklahoma State Senator from 1998 to 2006 and then as Oklahoma’s Attorney General from 2011 until he was nominated to lead the EPA.

During his time as AG of Oklahoma, Pruitt led the charge against then-President Obama’s repeated regulatory overreach, filing briefs in 14 lawsuits against the EPA. Most notably, he led the fight against the egregious “Waters of the United States” rule – a regulation so overreaching that it would have subjected even small ditches to federal regulation. He also worked to protect small businesses and hardworking Americans from the devastating impacts of the EPA’s mercury regulation for power plants and climate change regulations. Heritage Foundation expert Nicolas Loris writes in his article Scott Pruitt Provides an Opportunity to Rein in a Rogue EPA:

“…critics of Pruitt questioned his ability to lead an agency he has sued as a state attorney general. But as attorney general, that’s exactly what he is supposed to do: protect his state from overreach when the EPA does not comply with the law.

“And he wasn’t the only one. Twenty-seven states sued the Obama administration over the Clean Power Plan global warming regulations, and similarly, 27 states sued over the EPA’s Waters of the United States regulation that is a massive threat to private property rights.

“If you’ve heard anything from the activists protesting Pruitt’s nomination, you’d think he’s going to lead the United States on a path to the air and water quality of China. But the truth is that Pruitt has an opportunity to lead a responsible EPA, not an overzealous one like it is today.”

Mr. Pruitt’s commitment to prudent environmental protections that help ensure American’s have access to clean air and water is evident. During his time as AG he negotiated a deal to protect the Illinois River by reducing phosphorus via runoff controls. He also negotiated a water deal with between the state, local Tribes and Oklahoma City to protect the environment and water sources, ending a 19th century dispute. Pruitt even sued BP for double-dipping in the reclamation fund.

At the same time, Mr. Pruitt has demonstrated an even more fundamental commitment to the Constitution and rule of law. His leadership is exactly what is needed at this time to rein in an out-of-control EPA. Confirming Mr. Pruitt as EPA Administrator is a critical first step toward restoring the appropriate balance between both economic growth and environmental protection, limited regulation, a timely approval process, and prioritizing the role of states in local regulation by the EPA, instead of promoting a liberal agenda.

Heritage Action supports the Pruitt nomination and will include his confirmation vote on our legislative scorecard.

Key Vote: “YES” on Disapproval of the HHS Rule requiring Title X funds to go to Planned Parenthood

This week the House of Representatives is expected to vote on H.J.Res. 43, sponsored by Rep. Diane Black (R-TN), a disapproval resolution of the final rule submitted by Obama’s Secretary of Health and Human Services (HHS) relating to compliance with Title X requirements by project recipients in selecting sub-recipients. Title X of the Public Health Service Act provides federal funds to states for family planning grants.  Once states receive the funds, they have the ability to prioritize sub-recipients, directing funds to organizations like community health centers and family health clinics. While federal law prohibits government funding for abortion, it does allows certain public dollars, like the Title X grants, to support abortion providers if the funds are directed to non-abortion related health services.  Under this exception, Planned Parenthood has been eligible to receive Title X funds, per the states’ discretion.

However, after the Center for Medical Progress released videos suggesting that Planned Parenthood Federation of America affiliates are harvesting and selling the body parts of aborted unborn children, many states, including Alabama, Arkansas, Arizona, Florida, Louisiana, Kansas, Missouri, Ohio, Oklahoma, and Wisconsin, took steps to ensure that Title X funds were flowing to real health care clinics – – and not the abortion industry.  But, as Melanie Israel at The Heritage Foundation explains in her article Obama’s Last Gift to Planned Parenthood, the Obama Administration’s HHS stepped in to protect Planned Parenthood’s federal funding stream:

“President Barack Obama has given Planned Parenthood a parting gift in the final weeks of his administration….the Department of Health and Human Services proposed a rule that would prohibit states from blocking Planned Parenthood from receiving Title X family planning services grant money for reasons “unrelated” to its ability to provide family planning services….The rule was proposed in response to several states’ attempt to defund Planned Parenthood after the nation’s largest abortion provider was featured in a series of undercover videos released by the Center for Medical Progress last year.”

Despite this parting gift, Israel goes on to explain that the new Congress, and President Trump, have a unique opportunity to overturn this rule by using the Congressional Review Act:

“According to the Congressional Review Act, Congress and a new president can overturn rules issued in the waning days of a previous administration…The Congressional Research Service has estimated that anything submitted to Congress after the end of May 2016 can be undone in this manner, meaning there are many rules and regulations that the incoming Congress could and should vote to rescind….Incoming members should put Planned Parenthood’s parting gift on the list of items to address using the Congressional Review Act when Congress returns in the new year.”

Overturning this rule is the appropriate step for Congress to take, to both protect life and reassert that the states have Tenth Amendment rights to allocate Title X family planning grants in such a manner as to prioritize community health clinics and true family planning over the industrial abortion industry represented by Planned Parenthood.  The HHS rule is a classic example of excessive federal rulemaking and executive overreach for partisan political gain, making it a perfect target for nullification under the CRA.

Heritage Action supports H.J.Res. 43 and will include it as a key vote on our legislative scorecard.

Obama’s Last Gift to Planned Parenthood
Pro-Life Groups Fight Obama Administration’s ‘Parting Gift’ to Planned Parenthood


Key Vote: “YES” on the Nomination of Senator Sessions for Attorney General

Tonight, the Senate is expected to vote on the confirmation of Senator Jeff Sessions (R-AL) to be the next Attorney General of the United States. Senator Sessions was nominated by President Donald Trump on November 18, 2016.

There is no question that Senator Sessions is an excellent choice to restore law, order and a respect for the Constitution to a Justice Department that became little more than a radical political operation under former President Obama. In his opening remarks, Sessions made clear he would change course:

“In the last several years, law enforcement as a whole has been unfairly maligned and blamed for the unacceptable actions of a few bad actors. They believe the political leadership of this country abandoned them.”

It should come as no surprise then that numerous federal and state law enforcement officers, including former National Drug Control Policy Director Bob Bennett, National Sheriffs’ Association Executive Director Jonathan Thompson, and former Deputy Attorney General of the United States Larry Thompson, have praised President Trump’s nomination of Sessions.

Former Justice Department official Hans A. von Spakovsky, who is currently a Senior Legal Fellow at The Heritage Foundation, explains the importance of Sessions nomination at this moment in our nation’s history:

“In a time where we face a federal government that has expanded its power far outside the boundaries set by the Constitution, often with the help of the U.S. Supreme Court, having an attorney general who believes in the limited government intended by our Founders and respects the sovereignty of local governments is essential to preserving our freedoms, our liberties, and our constitutional republic.

“Sessions’ experience as a U.S. senator also gives him a valuable perspective on the job at Justice.  He understands and appreciates the importance of the constitutional oversight role of Congress.  This is important given the dismissive and contemptuous attitude displayed by former Attorney General Eric Holder and other Obama political appointees towards congressional oversight.”

During his confirmation hearing, Sessions made clear the lack of enforcement of existing laws is causing problems in our nation. In particular, America’s immigration system “has not been working right,” Sessions said. “We’ve entered more and more millions of people illegally into the country. Each one of them produces some sort of humanitarian concern. But it is particularly true for children. We’ve been placed in a particularly bad situation.”

Sessions also realized there are key areas of overreach, specifically noting a secretive DOJ program known as Operation Choke Point. “A lawful business should not be attacked by having other lawful businesses pressured not to do business with the first business,” Sessions said.

Prior to serving four terms as Senator from Alabama, Sessions was an Army Captain, and the Assistant United States Attorney for the Southern District of Alabama. In 1981 Senator Sessions was nominated by President Reagan and confirmed by the Senate to serve as the United States Attorney for Alabama’s Southern District, serving from 1981 until 1993. Sessions was then elected Alabama Attorney General in 1995, serving as the state’s chief legal officer until 1997, when he was elected to the United States Senate.  

His experience, record and commitment to the United States Constitution make Sessions a tremendously well-qualified and much-need nominee.  

Heritage Action supports the Sessions nomination and will include his confirmation vote on our legislative scorecard.

“YES” on Disapproving the Stream Protection Rule (H.J.Res. 38)

This week, the Senate will vote on H.J.Res. 38, a House-passed resolution disapproving of the rule submitted by the Department of the Interior’s Office of Surface Mining (OSM) known as the Stream Protection Rule (SPR), which would ensure that final SPR has no force or effect, and that OSM cannot issue a rule that is substantially the same without subsequent authorization from Congress.

While initially proposed in 2008, the rule wasn’t finalized until December 19, 2016.  During the intervening time, The Heritage Foundation wrote extensively about the profoundly negative impact this rule would have on the coal mining industry. In his paper The Assault on Coal and American Consumers, Heritage Foundation scholar Nick Loris writes: