Lael Keiser, PhD, Associate Professor, Department of Political Science, Truman School of Public Affairs, University of Missouri; Justin Dyer, PhD, Associate Professor, Department of Political Science, University of Missouri Learning Objectives: 1. Discuss the importance of implementation in determining the future of the ACA. 2. Explain the role of the Executive Branch, Courts and Congress in the rulemaking process. 3. Discuss the implications for recent court decisions on implementation.

1. Implementing the ACA: The
Executive, Judicial and
Legislative Branches
Separation of Powers

2. Lael Keiser, Associate Professor
University of Missouri
Justin Dyer, Associate Professor
University of Missouri

3. Implementation: Continuation of
politics
• ACA: Difficult to reform legislatively.
Federal Executive Branch:
- interprets (rulemaking)
- applies law (enforcement)
State Governments: Medicaid
Expansion

4. Executive Branch
• President (Executive Office of the President)
• Political Appointees (Secretary of HHS)
• Civil Service

5. What is Rulemaking?
• Proposal and adoption of regulations
by public agencies
• Force of law
• Quasi legislative

6. 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.

7. 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

8. • Discretionary rulemaking provisions
1.Permit but do not require agency to issue
rules.
2.Agency Head discretion

9. Alternatives to Rulemaking
• Interpretative Rules
• Policy Statements
• ACA also requires HHS to establish
programs and procedures but does
not specifically mention regulations.

10. 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.

11. Administrative Procedures Act
• Proposed rule published in Federal
Register (Part of Unified Agenda)
• notice and comment period
• Code of Federal Regulations

12. What guides rulemaking?
• Content
- Intent of enabling legislation
• Procedures
- Administrative Procedures Act
- Procedures required by Congress

13. Procedural Requirements (determined by
Congress)
• cost benefit analysis
• Negotiated rule-making

14. Who pays attention?
• Interest groups
- business groups and public interest
groups
• State governments
• General Public- depends

15. Rulemaking: Separation of Powers in
Action
President
• Political Appointees
• Executive Office of the President
- Office of Management and Budget

16. 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

17. • Controls authority to write rules
• Pass laws to overturn rule
• Oversight Hearings: encourage or
discourage rules

18. • Senate Confirms Political Appointees
• Meet with agency officials
• Congressional Review Act (1996):
- requires submit final rules to Congress and
allows for expedited legislative procedures.

19. 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

20. Courts
• Can Order Agency to Write Rule
- example EPA and Green House
Gases (MA v. EPA 2007)

21. Importance of Interest Groups
• Bring cases to courts
• Lobby Congress and President
• Interact with bureaucracy
- informal
- notice and comment period

22. 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.

23. 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.

24. Election matters for Future of ACA
• Congress (oversight, budgets, confirmations)
• President- political appointees to agencies and
judicial appointments

25. 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)