Darrell Issa Keeps Health Care Law in His Sights

Posted November 1, 2012 at 3:46pm

House Republicans are opening a new front in their drive to derail the 2010 health care overhaul, using an expedited legislative procedure to upend targeted parts of the law.

Republican leaders are preparing to launch the effort during the post-election session that begins Nov. 13. But whether they will have the House vote on a resolution of disapproval intended to sideline an IRS rule related to the health care law hinges on who wins the presidential election. 

The resolution backed by Rep. Darrell Issa, the California Republican who heads the Oversight and Government Reform Committee, and  Rep. Scott DesJarlais, a Tennessee Republican and the measure’s chief sponsor, is meant to nullify the upcoming IRS rule authorizing the distribution of subsidies through tax credits in every state, even the 35 that have not yet established state health care exchanges, as an incentive to get most Americans to buy insurance, a central tenet of the overhaul (PL 111-148;  PL 111-152).

Using resolutions of disapproval to dismantle implementation of the health care law represents a far more targeted approach than House Republicans have taken since they moved into the majority in 2011. The House has held 31 votes on bills to repeal all or part of the health care overhaul.

House leaders plan to bring the resolution to a vote during the lame-duck session if Obama wins re-election but will lay the groundwork for using the budget reconciliation process to strike parts of the law instead if former Massachusetts Gov. Mitt Romney wins, Republican aides said.

The resolution aimed at the IRS rule is the first in a series of Republican initiatives intended to block parts of the heath care law if Obama is given a second term, a senior Senate Republican aide said.

“If Obama wins, you will see more of them. If Romney wins, you will see fewer,” said the Senate Republican aide, who added that even if such resolutions ultimately fail, they could require Democrats to cast votes that could pose re-election problems in 2014. 

Disapproval resolutions, such as this one (H J Res 112), come to the House and Senate floors under expedited procedures and require only a simple majority for passage in each chamber, but they still must be signed by the president to overturn a disputed regulation. 

Republicans used the same tactic this fall to try to kill the Obama administration’s recent move to allow waivers to work requirements specified under the 1996 welfare overhaul law, but the Senate put off action on that effort until after the elections. Even if Congress voted to block either the health care law’s tax or the welfare rule, neither is likely to be overturned while Obama is in office. 

The disapproval process is dictated by the 1996 Congressional Review Act (PL 104-121), a law that has been used successfully only once, when President George W. Bush signed a resolution overturning an Occupational Safety and Health Administration workplace ergonomic rule in 2001.

Issa and other critics argue the health care law does not explicitly provide authority for the IRS to enforce the law’s tax provisions. Under an IRS rule finalized in May, subsidies for helping eligible individuals buy health insurance would be available in state and federal exchanges beginning in 2014.

Opponents such as Issa and DesJarlais contend that the health care overhaul authorizes subsidies only in state-run exchanges, not those to be set up by the federal government in the states that choose not to establish their own or would not meet the law’s requirements. 

As a result, critics say, the rule directly conflicts with the statute and allows the IRS to provide subsidies through tax credits without authorization from Congress. They also say employers in the states that have resisted setting up exchanges would have to pay the penalty for not offering insurance to their workers because it’s tied to eligibility for subsidies in an exchange.

But, in an explanation accompanying the final regulations, the IRS said the rule is consistent with the law and its legislative history does not show that Congress meant to restrict subsidies to state exchanges only. 

DesJarlais, a physician who sits on the Oversight and Government Reform panel and is in a tough re-election battle, has been working with Issa on the disapproval resolution.

Use of the resolution represents an effort by Issa, who has held several highly partisan investigations into administration actions, to reposition his panel to be at the center of opposition to the health care law.

Issa added health care to the jurisdiction of one of the subcommittees that oversees the District of Columbia, Census and the National Archives, but the full committee focused most of its investigations elsewhere.

Issa’s handling the health care issue in coming months could provide a fresh opening for him to improve his oversight record, according to GOP aides and longtime political observers. 

“The question is, what does Darrell Issa want?” said Wendy Schiller, a political scientist at Brown University. She said tough attacks on the implementation of the health care overhaul could position him for a run for a leadership job.

Issa has led probes into security at the U.S. consulate in Benghazi, Libya, after an assault on the facility left a U.S. ambassador and three other Americans dead and into the Justice Department’s flawed “Fast and Furious” gun-tracing operation. The investigations generated headlines but resulted in no high-level ousters or criminal prosecutions and Issa’s main legislative initiative, a Postal Service overhaul
(HR 2309), is stalled.

Former Rep. Tom Davis, once a chairman of the Oversight and Government Reform Committee and now director of federal government affairs for Deloitte & Touche, said Issa is likely to make more headway raising questions about the health care law’s IRS rule and probing waste and fraud in the Medicaid program than he has on other topics.

“Win or lose, health care will be a hot issue. And I think the committee will play a key role,” Davis said.

Rep. Phil Roe (Tenn.), a physician and leader of a 21-member group of House Republican health care professionals, said Issa is consulting with health care experts and other committees in his effort to sideline the IRS rule. Issa invited Roe, who is chairman of the Education and Workforce Subcommittee on Health, Employment, Labor and Pensions, to sit in on an August hearing on the issue. 

“O and I is a good place to do this. The scope of the committee is oversight,” said Roe, who also predicted that the House will take up the disapproval resolution if Obama wins re-election, but not if Romney wins.

Melissa Attias contributed to this report.

Correction: Nov. 2, 2012, 3:25 p.m.

An earlier version of this article had an incorrect photo cutline. The photo shows Rep. Darrell Issa and an aide.