A Friendly Reminder That Defunding Obamacare Won’t Stop the Law

Sen. Tom Coburn, R-Okla., listens to Goldman Sachs executives testifying before the Senate Subcommittee on Investigations hearing on Wall Street investment banks and the financial crisis on Capitol Hill in Washington, Tuesday, April 27, 2010. (AP Photo/Charles Dharapak)
National Journal
Sophie Novack
Sept. 17, 2013, 5:03 p.m.

With Cap­it­ol Hill wrapped up in a de­bate this week re­gard­ing loom­ing fisc­al fights and the pos­sib­il­ity of a shut­down over the health care law, it’s worth re­mem­ber­ing that shut­ting down the gov­ern­ment would likely have little im­pact on the Af­ford­able Care Act. Ac­cord­ing to a Con­gres­sion­al Re­search Ser­vice re­port re­leased at the end of Ju­ly, much of the law’s im­ple­ment­a­tion is sep­ar­ate from an­nu­al dis­cre­tion­ary ap­pro­pri­ations.

The CRS re­port was is­sued at the re­quest of Sen. Tom Coburn, R-Okla., who has not been shy about his op­pos­i­tion to the shut­down strategy. “[A gov­ern­ment shut­down] would be com­mit­ting ritu­al sui­cide on an al­tar of bad strategy,” Coburn’s com­mu­nic­a­tions dir­ect­or, John Hart, told Na­tion­al Journ­al Daily. “The idea that we can fully de­fund Obama­care through the con­tinu­ing res­ol­u­tion is a Wash­ing­ton gim­mick to ad­vance polit­ic­al fund­ing goals.”

The re­port sub­stan­ti­ates the ar­gu­ment that a shut­down would not be an ef­fect­ive tool to stop the law. This is be­cause much of the law re­lies on man­dat­ory fund­ing and mul­tiple-year and no-year dis­cre­tion­ary funds, which are not be­hold­en to an­nu­al budget de­bates.

In fact, a gov­ern­ment shut­down is quite dif­fer­ent from the way it is com­monly viewed by the pub­lic. Al­though the lapse in dis­cre­tion­ary budget au­thor­ity would likely im­pact some day-to-day routine op­er­a­tions of the gov­ern­ment — such as the Na­tion­al Park Ser­vice — es­sen­tial and ne­ces­sary func­tions of the gov­ern­ment and ones that have rel­ev­ant health-based con­cerns would con­tin­ue. So­cial Se­cur­ity and Medi­care would likely con­tin­ue in large part be­cause they are man­dat­ory pro­grams; health re­form un­der the ACA would also be con­sidered es­sen­tial for pub­lic health and would largely con­tin­ue to be fun­ded.

“Fund­ing for state-op­er­ated in­sur­ance ex­changes [in the ACA] is a dis­tinct man­dat­ory fund­ing source,” Cen­ter for Budget and Policy Pri­or­it­ies Seni­or Fel­low Paul Van de Wa­ter said. “In the case of all the fed­er­al gov­ern­ment’s dir­ect activ­it­ies — in­clud­ing fund­ing for fed­er­ally run ex­changes — it looks like the bulk of it could con­tin­ue with no ob­vi­ous end in sight if there were a shut­down.” Al­though some smal­ler ef­fects are pos­sible, this means that the main ele­ments of the law would con­tin­ue for some time, in­clud­ing the in­sur­ance ex­changes, sub­sidies, and the in­di­vidu­al man­date.

Also, agen­cies have pre­pared con­tin­gency plans in the event of a gov­ern­ment shut­down, and the Health and Hu­man Ser­vices plan main­tains fund­ing for many of its pro­grams. “The HHS shut­down con­tin­gency plan that was pre­pared in an­ti­cip­a­tion of a pos­sible gov­ern­ment shut­down in FY 2012 in­dic­ated that ACA im­ple­ment­a­tion activ­it­ies at CMS would con­tin­ue be­cause of the man­dat­ory fund­ing provided in the law,” the CRS re­port says. The only real way to strip the law of these man­dat­ory funds would be to re­peal the full law.

And while Con­gress has the power to pre­cip­it­ate a shut­down, much of the jur­is­dic­tion over how a shut­down would be im­ple­men­ted lies with the agen­cies and ex­ec­ut­ive branch, and is writ­ten in­to these con­tin­gency plans. Even some Re­pub­lic­ans sup­port­ing the strategy of ty­ing Obama­care to the CR de­bate re­cog­nize that it would not have the prac­tic­al ef­fects they truly want. “It’s mostly sym­bol­ic,” Sen. James In­hofe of Ok­lahoma said re­cently. “We want to have something out there so people con­tin­ue to talk about it…. That’s a way of keep­ing the is­sue alive…. It is something you have to keep do­ing be­cause you have strong be­liefs, and even if lo­gic­ally it isn’t go­ing to work out the way you want it, you still try.”

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