assignment 610
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610lesson.docxWe are all familiar with the three branches of government Legislative, Executive, and Judicial. The powers of each generated substantial debate during the period you reviewed last week. See the link to better understand the intent behind these branches and the intended separation of powers . The U.S. Constitution assigns powers and responsibilities to each branch but does not narrowly state where one ends and the other begins—which leaves significant room for interpretation and continues to engender inter-branch competition. The Judicial Branch has provided interpretation on these issues over the years.
Today we will look at each of these more specifically, and conclude with a detailed example demonstrating how federal, state and local governments interact in policy making, both horizontally and vertically.
Legislative
The Legislative Branch includes the House of Representatives and the Senate, together we refer to them as the Congress. The Constitution expressly grants certain powers to the Legislative Branch. These are known as “ enumerated powers ,” and include things such as the power to raise and support an army. These lead to certain “implied powers,” such as the power to institute the draft to raise that army.
Other powers include Resulting Powers, Inherent Powers and Inherited Powers. Take some time to explore the historical information on the Senate and the House (Also review the powers and procedures of the Senate and the House .
Executive
The Executive Branch is made up of the President and his or her administration. Under Article II of the Constitution, the President is responsible for executing the laws enacted by Congress among other powers .
Judiciary
The Judicial Branch (federally) is made up of individuals appointed by the President and confirmed by the Senate. Article III of the Constitution governs this area of responsibility. The First Congress created a three-tier system of federal courts with the Judiciary Act of 1789. These were and are still divided into district courts, circuit courts (Appellate Courts) and a Supreme Court.
Federalism
Through the system of “federalism,” shared governing responsibility and powers is divided between the federal, state and local governments. Each state has its own Constitution but they must all conform to the U.S. Constitution. The model is thus capable of protecting divergent political interests and preserving contextual, traditional, cultural and regional differences in day-to-day governance and public administration while ensuring a working level of coherence and consistency on key political principles and values and on policy concerning ‘the national common good.’ The Federal Government has the sole ability to print money, declare war, establish an army and enter into treaties with foreign governments. States have the exclusive power to establish local governments, issue licenses, regulate intrastate commerce and conduct elections. The Federal and State governments share the power to establish courts, create and collect taxes, borrow money and build infrastructure. Local government typically provides education services, fire and police, and other local administrative functions. It is divided into two tiers: county (borough/parish) and municipality (township/town/city/ village).
Separation of Powers
Locke’s thought contained the idea of the separation of powers as a cornerstone of his argument for limiting (in function and scope) the arbitrary abuse of government power. The full doctrine is most often attributed to Montesquieu’s The Spirit of the Laws (1748), which also champions the efficacy of representative democracy in large nation states. In U.S. practice, the separation of powers is not quite as clear cut or easy to manage as Montesquieu originally set out. Your required reading this week from Bradley and Morrison (2012) details some of the dynamics involved as well as the role of historical practice in discerning those areas where the separation between, and independence of, branches of government has more than a few rather fuzzy edges. The example later in the lesson provides illustrations.
You will find that each U.S. state has its own structure and separation of powers ’ concerns that you might wish to comment on in your written work this week. At times, it may be difficult to identify which branch of government is executing authority at any given time, as well as which branch certain administrative commissions or state budget controlling boards belong or should answer to. A guide regarding how to spot the differences will be helpful.
There are various forms of municipal government including the city manager, the mayor-council, the commission, the town meeting and the representative town meeting models. A brief overview of the characteristics of these forms and a list of U.S. examples of each should be useful.
An example of the two bills that became Obama’s Patient Protection and Affordable Care Act (ACA, 2010) should help you trace how the various branches interact, horizontally and vertically, in the passage of major policy reforms. You may not use this in your work, since I am doing it here.
The passage of the ACA, or “Obamacare”, illustrates how intimately politics and policy affect each other, and how concepts, like freedom, are invoked in policy debates. In showing how the branches of government act together, it also highlights how they can circumvent each other by using certain ‘workarounds’ at the federal and state levels when partisan stalemates threaten to stymie practical policy change. It’s up to you to decide whether you think these particular ‘workarounds’:
A. obstruct the Founders’ commitment to building a system with an adequate separation of powers, or
B. are indispensable to ensure the checks and balances don’t end up grinding the policy process to a standstill.
ACA Provisions
The three central goals of ACA are: to expand access to affordable health insurance; increase patient protection from arbitrary insurance company actions; and promote better health outcomes while reducing costs.
The policy debate over the original provisions largely concerned:
1. the individual mandate–all Americans who do not have health insurance from their employer, Medicare, Medicaid or other public program must buy it or face a penalty.
2. insurance exchanges—online health insurance marketplaces regulated by states (where states provide them) or by the federal government (where they do not).
3. Medicaid expansion–mandatory state expansion of Medicaid funding to most low-income adults who earn up to 133% (or 138%, depending on the math used) of the Federal Poverty Line. If states refused, they would lose their original federal Medicaid subsidy.
Federal Level
Legislature
Both houses worked on health reform proposals in 2009. The House passed the Affordable Health Care for America Act by 220-215 on November 7, 2009 and forwarded it to the Senate. It was never enacted.
Senate
Instead, the Senate concentrated on its own proposal. Since revenue-related bills must originate in the House, a customary workaround was employed. The Senate used a former bill, H.R. 3590, stripped of most content, and added health care reforms to it. Negotiations began, involving compromises to woo Republicans while maintaining united Democratic support—and the Democrats were in great need of it to reach a supermajority to end a Republican filibuster. Oberlander’s (2010) article details some of the costly deals that were struck as well as how alliances formed with industry stakeholders and key interest groups led to compromises in the bill’s wording.
Achieving a Democratic supermajority was proving difficult from month to month. In April 2009, Sen. Specter (R-PA), switched to the Democrats. In July, the ballot recount led to Sen. Franken (D-MN) being sworn into office. This fulfilled the 60 senator supermajority requirement, but made it imperative for the majority leader to maintain every single Democratic senator in favor of ACA. In August, Sen. Ted Kennedy (D-MA) died, once again annulling the Democrat supermajority until his temporary replacement was appointed in September.
The bill passed the Senate in December, after a 60 vote supermajority ended the expected Republican filibuster. Less than a month later, Massachusetts unexpectedly elected a Republican senator, exploding Democrat chances of ending another Senate filibuster if the House required further changes to the bill.
House
The lack of a supermajority meant that an amended health reform bill would likely not pass the Senate a second time around. A majority of House Democrats thus agreed to pass the Senate bill as it stood—provided they could amend it through a second House-initiated bill: the Health Care and Education Reconciliation Act (HCERA). This workaround rested on using a ‘filibuster shortcut’ rooted in the Senate’s reconciliation process which is restricted to budgetary amendments and can only be used once a year. Reconciliation acts do not permit filibustering. This meant Democrats could alter budget-related elements of the original ACA and safely expect the Senate to pass them by simple majority. It did.
The House passed the Senate ACA bill by 219-212 on March 21, 2010 and the HCERA on the same day. The Senate passed the House HCERA by 56-43 on March 25, with minor amendments that passed the House on the same day.
Executive
Obama signed the ACA into law on March 23, 2010, and HCERA on March 30. Unlike Clinton’s failed health care plans, he left working the details out to Congress, which increased its chances of success. He worked with Congress in joint sessions and pushed hard for maintaining comprehensive legislation when the temptation to opt for easier piecemeal gains threatened to cause legislative wavering.
Judiciary
The day after ACA was enacted, Republicans began introducing repeal legislation, but conflicts did not come to a head in the judiciary until 2012. Medicaid expansion was mandatory for every state when Obama signed ACA into law. This was a key reason why 27 states and the National Federation of Independent Business sued to repeal the law in the Supreme Court in June 2012 (see Stewart 2011). The Supreme Court (2012) upheld as constitutional the vast majority of the ACA’s provisions, including the controversial individual mandate. However, the original measure forcing states to expand Medicaid or lose their former Medicaid subsidies was overturned. The SC ruled that former Medicaid funding would continue regardless of state implementation of the expansion. Medicaid expansion was thus made optional for states.
State Level
The decision on whether to opt out of Medicaid expansion is not the only area that states continue to play a key role in determining the success of ACA. They have taken, or continue to face, tough decisions on whether to create health insurance exchanges or not, and how to codify new market rules for insurance. Weil and Scheppach’s (2010) article draws up a useful state ‘to-do’ list relevant to this point. Current state action on the Medicaid expansion decision can be found here as reported by the Kaiser Family Foundation (2016). The National Conference of State Legislatures summarizes state laws and actions either challenging, limiting or opting out of broad health reforms related to ACA between 2011-16. Naturally, the results vary widely between states.
Many opposing states saw Obamacare as a blatant federal takeover of health care. In response, many states defended their freedom to choose health care insurance providers strongly. A good case in point is the Health Care Freedom Amendment to Ohio’s state constitution—which established that it would be unconstitutional for any governor to implement an Obamacare Exchange, despite the Federal Supreme Court’s Rulings in King vs. Burwell (2015).
Example: Ohio
Also in Ohio, a fierce conflict between the state executive and legislative branches involved significant differences over constitutional interpretation. This again highlights contention over the checks and balances the separation of powers is supposed to provide. Governor Kasich took the decision to implement Obamacare’s optional Medicaid expansion in the face of considerable opposition in the Ohio Legislature. Ohio’s Republican Congress passed a bill to prohibit this aspect of ACA implementation. Kasich vetoed it. The governor instead used a state-level workaround by turning to Ohio’s Controlling Board, which handles necessary adjustments to the state budget. He went ahead with the expansion without legislative approval, based on a majority decision by the Board. He was subsequently sued in 2013 in Ohio’s Supreme Court on the grounds that such a major policy issue should not be acted upon by the state executive branch alone. The Court nevertheless upheld the constitutionality of the governor’s actions, since the bill prohibiting Medicaid expansion had not been signed into law by the governor.
Local-Level Implementation
As with most major legislation, the pros and cons of ACA are felt most keenly at the local level. The reforms promise to expand healthcare coverage to more residents—which, if successful, could be a vote-winner. But they also create the need for radical administrative overhaul and change that are challenging to negotiate and implement.
While state decisions on Medicaid expansion and exchange creation have been in the spotlight, the ACA actually provides significant leeway for local governments to make their own decisions on literally hundreds of strategies involved in the reforms. There is enormous variation between different local government management of the policy as well as timelines. The ACA Implementation Research Network has a useful interactive map that brings together detailed resources on the context, implementation strategies and implications of ACA across most of the US. This ICMA press call covers how several local governments are facing the considerable challenges of implementing ACA.
Conclusion
The convoluted and highly contentious passage of the ACA exemplifies just how much competition exists between the branches of government in the formulation, legislation and implementation of policies. Next week we will take a closer look at the policy theories that attempt to explain how such decisions are made and what influences hold the greatest sway in policy making.
References
Bradley, C. A., and Morrison, T. W. (2012) “Historical Gloss and the Separation of Powers.” Harvard Law Review, 126(2), 412-485.
Crowell, M. (2015) “Perspective on the Separation of Powers Case.” Coates’ Canons: NC Local Government Law. March 31. http://canons.sog.unc.edu/perspective-on-the-separation-of-powers-case/
Kaiser Family Foundation. (2016) Status of State Action on the Medicaid Expansion Decision. State Health Facts. July 7. http://kff.org/health-reform/state-indicator/state-activity-around-expanding-medicaid-under-the-affordable-care-act/
Montesquieu. (1748) Of the Spirit of the Laws. Book 9, ch. 6. http://media.bloomsbury.com/rep/files/primary-source-104-montesquieu.pdf
Oberlander, J. (2010) “Long Time Coming: Why Health Reform Finally Passed.” Health Affairs 29(6), 1112-1116. http://content.healthaffairs.org/content/29/6/1112.full
Stewart, B. (2011) “ List of 27 States Suing over Obamacare.” Daily Signal. January 17. http://dailysignal.com/2011/01/17/list-of-states-suing-over-obamacare/
U.S. Supreme Court. (2012) National Federation Of Independent Business Et Al. V. Sebelius, Secretary Of Health And Human Services, Et Al. https://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf
