Tag Archives: Congress

House Bipartisan Bill – Medicare Access and CHIP

A bipartisan bill, H.R. 2, Medicare Access and CHIP Reauthorization ACT, would repeal the Sustainable Growth Rate (SGR) formula, which sets a cap on physician spending, and would revamp payment of physicians under Medicare. On March 26, 2015 the U.S. House overwhelmingly (392-37) voted in favor of the bill, also known as SGR replacement bill. The Senate will vote on the bill after recess.

The legislation was introduced by Speaker John Boehner (R, Ohio) and Minority Leader, Nancy Pelosi (D, California). It would repeal the SGR Medicare formula that imposes the imminent threat of cuts to Medicare providers and would eliminate the need for Congress to set payment rates for Medicare physicians annually – a process known as “doc fix”. Since 2003, Congress has overridden the cuts imposed by SGR on 17 occasions, and the most recent override ends on March 31, 2015. If Congress does not take action, Medicare payments to physicians will be cut by 21% on April 1, 2015.

The H.R. Medicare Access and CHIP Reauthorization ACT will

  • Repeal the Sustainable Growth Rate Formula;
  • Ensure a 5-year period of annual increases of 0.5% in payments to physicians;
  • Set up a two-tier payment system that incentivizes a shift to value-based payment systems that reward physicians who meet performance thresholds and make care-coordination efforts for patients with chronic conditions;
  • Incentivize transition to alternative payment models (APMs) by requiring that physicians receive at least 25% of their revenue through an APM in 2018-2019, with an increased threshold overtime; and
  • Extend funding for the Children’s Health Insurance Program (CHIP) and community health centers for another two years.

These changes are estimated to cost approximately $200 billion, and $70 billion of that cost would be offset by two major program changes: (1) higher premiums for higher-income Medicare beneficiaries and (2) reduced governmental spending on supplemental insurance plans, increasing out-of-pocket costs for Medigap recipients.

via Legislation Law Prof Blog.

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Filibuster Changes

I heard about this vote a while back and it will be interesting to see how it plays out.  You hear about this all the time.  The majority party (regardless of whether they are Democrat or Republican) wants to change filibuster rules.

This year the number of bills passed has been the lowest since Congress was formed.  NBC calls it “Do-Nothing” Congress. USA Today describes the 2011-12 period as the “least productive year on record” and 2013 as being on track as the “least productive single year in modern history.”

The question is then, do we need filibuster reform?  The answer is yes.  To what extent?  This is heavily contested.

The Senate approved the most fundamental alteration of its rules by ending the minority’s party ability to filibuster most presidential nominees in response to the partisan gridlock that has plagued Congress.  (NY Times article).

Under the change, the Senate will be able to cut off debate on executive and judicial branch nominees with a simple majority rather than rounding up a supermajority of 60 votes.  This does not apply to all nominees, such as Supreme Court nominees.

via In Landmark Vote, Senate Limits Use of the Filibuster – NYTimes.com.

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Minnesota Senate joins House in approving same-sex marriage

This news exploded in the media and social media.  Minnesota is set to become the first Midwestern state and the 12th state in the U.S. to allow same-sex marriage.

Yesterday, Minnesota Senate voted 37 to 30 in favor of allowing same-sex marriage.  Earlier, the Minnesota House of Representatives voted 75 to 59 in favor for it.  As a backdrop, in the prior election, Minnesota voters rejected a proposed constitutional amendment that would have defined marriage as only between a man and a woman.

Governor Dayton stated that he will sign the bill once it comes to his desk.

via Minnesota Senate joins House in approving same-sex marriage | MinnPost.

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Court upholds Handgun-Sales Age Requirement

This case again shows that regulating firearms is constitutional.

In NRA v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 11-10959 (5th Cir. Apr. 29, 2013), the court upheld 18 USC 922(b)(1) and (c)(1).  These laws prohibit federally licensed firearms dealers from selling handguns under the age of 21.

The NRA claimed that this federal statute was unconstitutional under the Second Amendment.  The court disagreed.

The Fifth Circuit Court of Appeals explained:

In a critical passafe, moreover, the Court emphasized that the ‘right secured by the Second Amendment is not unlimited.’ [Dist. of Columbia v. Heller, 554 US 570, at 626].  As the [Supreme] Court explained:

From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose… [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ills, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Id. at 626-27 (emphasis added) (citations omitted).

Thus, the Circuit Court stated that “Congress designed its scheme to solve a particular problem: violent crimes associated with the trafficking of handguns from federal firearms to licensees to young adults.”  The court, further stated that Congress could have sought to prohibit all persons under 21 from possessing handguns or all guns.  Additionally, the court pointed that under the Census, 18-to-20-year-olds accounted for a disproportionately high percentage of arrests for violent crimes” in 2010.

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NLRB Recess Appointments Unconstitutional

Today, the D.C. Circuit Court of Appeals held that the NLRB recess appointments were unconstitutional.  It goes without saying that the possible ramifications of this decision, which may impact other NLRB decisions.

In Noel Canning, the NLRB held that the issue presented was mooted because the NLRB recess appointments were unconstitutional.  In its decision, the court essentially stated that the Senate wasn’t in recess.  The court reasoned that “recess” occurs when Congress is not in one of its regular two or three sessions.

via Workplace Prof Blog: D.C. Circuit Holds NLRB Recess Appointments Unconstitutional.

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Affordable Care Act – Medicaid Expansion

The Court’s decision on the constitutionality of the Medicaid expansion is divided and complicated.  The bottom line is that: (1) Congress acted constitutionally in offering states funds to expand coverage to millions of new individuals; (2) So states can agree to expand coverage in exchange for those new funds; (3) If the state accepts the expansion funds, it must obey by the new rules and expand coverage; (4) but a state can refuse to participate in the expansion without losing all of its Medicaid funds; instead the state will have the option of continue the its current, unexpanded plan as is.

The votes for this outcome are divided among several opinions.

Three Justices – the Chief, Justice Kagan, and Justice Breyer – took the position that depriving a state of all of its Medicaid funding for refusing to agree to the new expansion would exceed Congress’s power under the Spending Clause.  Although Congress may attach conditions to federal funds, they concluded, it may not coerce states into accepting those conditions.  And in this case, taking away all the states’ funds for the entirety of its Medicaid program just because it disagreed with a piece of the program would be coercive.  But the remedy for that constitutional violation is not to declare the expansion unconstitutional – such that even states that want to participate would not have the option.  Instead, the plurality held that the provision of the statute that authorized the Government to cut off all funds for non-compliance with the expansion was unconstitutional.  The result is that states can choose to participate in the expansion, must comply with the conditions attached to the new expansion funds if they take that new money, but states can also choose to continue to participate only in the unexpanded version of the program if they want.

Justices Ginsburg and Sotomayor would have held the entire expansion program constitutional, even the provision threatening to cut off all funding unless states agreed to the expansion.  Their votes created a majority for the proposition that the overall expansion was constitutional, and that states could choose to participate in the expansion and would have to comply with the expansion conditions if they did.

But there was still no majority about what to do about the states that do not want to participate in the expansion – the Chief Justice’s 3-Justice plurality voted to strike down the provision allowing the Government to withhold all funds from states that reject the expansion; Justices Ginsburg and Sotomayor voted to uphold it.

The deadlock was broken by the dissenters.  Justice Scalia – writing on behalf of himself, and Justices Kennedy, Thomas, and Alito – agreed with the Chief’s plurality that the threat to withhold all funds was unconstitutionally coercive.  But they would have held that the consequence is that the entire expansion program should be stricken.  The result would have been that even states that wanted to participate in the program could not.  The plurality’s approach of simply striking down the provision that allowed withholding all funds if the state refused the expansion was, in the dissenters’ view, tantamount to rewriting the statute.

At this point, that meant that there were 2 votes to uphold the expansion in its entirety, 4 votes to strike the entire expansion down, and 3 votes to strike down only the provision withholding all funds for non-compliance with the expansion mandate.  So where does that leave things?

Fortunately (for the sake of clarity at least), Justices Ginsburg and Sotomayor resolved the ambiguity by voting with the plurality on the remedy question.  That is, these Justices voted that if the statute was unconstitutionally coercive, then the remedy would be only to strike down the all-or-nothing sanction.

The consequence was a bottom line of 7 Justices – the Chief, Breyer, Kagan and the four dissenters – finding the expansion unconstitutional.  But a different majority – the Chief, Ginsburg, Breyer, Sotomayor and Kagan – held that the remedy for the violation was to strike down only the provision allowing the federal government to withhold all Medicaid funds unless a state agrees to the expansion.

via Court holds that states have choice whether to join medicaid expansion : SCOTUSblog.

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AG Holder Letter to 5th Circuit Affirms Judicial Power to Strike Unconstitutional Laws

In a letter Thursday to three federal appeals court judges, U.S. Attorney General Eric Holder has reiterated what he calls “the long-standing, historical position of the United States regarding judicial review of the constitutionality of federal legislation.”

Although the judicial branch, appropriately, often opts to defer to the judgment of Congress, it nonetheless has the power to strike laws that it determines to be unconstitutional, Holder writes. His unusual letter was requested by the New Orleans-based 5th U.S. Circuit Court of Appeals panel on Tuesday after President Barack Obama suggested that a U.S. Supreme Court ruling against the administration’s position in a pending case over the constitutionality of his health care reform law would constitute extraordinary “judicial activism.”

Think Progress provides a link to the AG’s missive (PDF).

“While duly recognizing the courts’ authority to engage in judicial review,” Holder wrote, “the executive branch has often urged courts to respect the legislative judgments of Congress.” Tuesday’s remarks by President Obama, he concludes, “were fully consistent with the principles described herein.”

via AG Holder Letter to 5th Circuit Affirms Judicial Power to Strike Unconstitutional Laws, Backs Obama – News – ABA Journal.

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Congress sues Obama

Ten members of Congress from both parties sued President Barack Obama and Secretary of Defense Robert Gates for going to war in Libya and other countries without a declaration of war from Congress.

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