House Chairmen Selected for 113th Congress

House Republicans took an organizing step forward for the 113th Congress by selecting Committee Chairmen this week. Many of the key players did not change – Fred Upton (Michigan) is still at the helm of Energy and Commerce Committee, Harold Rogers (Kentucky) will be in charge of the full Appropriations Committee, Paul Ryan (Wisconsin) will lead Budget, and Dave Camp (Michigan) will continue to head up Ways and Means. One big change is with Rules Committee leadership – David Dreier (California) is moving on and Pete Sessions (Texas) will be taking over. It also is notable that with Ileana Ros-Lehtinen (Florida) leaving the top spot on the Foreign Affairs Committee due to term limits, there will be no women leading House Committees.

Even though there is great speculation about Subcommittee Chairs (particularly the Labor, Health, and Human Services Appropriations Subcommittee), they have yet to be announced.

In addition, the House Republican Steering Committee today approved Republican committee assignments for some committees.

New Republican Appropriations Committee members:

Rep. Jaime Herrera Beutler (WA-3)

Rep. Chuck Fleischmann (TN-3)

Rep. Jeff Fortenberry (NE-1)

Rep. David Joyce (OH-14)

Rep. Thomas Rooney (FL-16)

Rep. David Valadao (CA-21)

New Republican Energy & Commerce members:

Rep. Gus Bilirakis (R-FL)

Rep. Renee Ellmers (R-NC)

Rep. Ralph Hall (R-TX)

Rep. Bill Johnson (R-OH)

Rep. Billy Long (R-MO)

New Republican Ways & Means members:

Tim Griffin (AR)

Mike Kelly (PA)

Tim Scott (SC)

Todd Young (IN)

Severability…What Severability?

For months we heard that health reform could collapse in one piece if the individual mandate was found to be unconstitutional as Congress—by accident or intent—did not include a severability clause in the final version of the Affordable Care Act (ACA).

So what happened? Why isn’t anyone focused on severability now?

Well… as you now know, the individual mandate was upheld as a tax rather than under the Commerce Clause so severability became irrelevant for the mandate. Where severability could have been necessary is in the courts ruling of the Medicaid expansion.  However, Chief Justice Roberts officially took the issue out of play in the Majority Opinion stating that due to the severability clause in the underlying Medicaid law rendered the issue null and void.

That fully remedies the constitutional violation we have identified. The chapter of the United States Code that contains §1396c includes a severability clause confirming that we need go no further. That clause specifies that “[i]f any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shall not be affected thereby.”§1303.

Of course, this did not stop Justices Scalia, Kennedy, Thomas, and Alito from elaborating their own view in the Dissent that the law did not include a severability clause and therefore absolutely should fall as one piece. Not only did they discount the Majority’s rationale regarding the Medicaid statute, they took one step further in a separate “Severability” section of the Dissent making it very clear that if they had been in the majority and ruled that the individual mandate and/or Medicaid provisions should fall that the entire law would come down.

So, the bottom line is that while the severability issue was essentially moot in the courts decision, it could have been a game changer had Roberts sided with the minority and the court ruled 5-4 against the mandate.  Given the minority opinion on severability, there is little doubt the entire law would have been thrown out completely.

Written by Rebecca McGrath and Erin Will Morton

Senate LHHS Mark Up Today

The Senate Appropriations Labor, Health, and Human Services (LHHS) Committee will meet today at 2:30 pm for a much anticipated markup of the Fiscal Year (FY) 2013 Appropriations bill. The Full Appropriations Committee is expected to meet on Thursday to consider (and likely pass) the bill. The House LHHS Subcommittee is rumored to markup their version of the bill later this month.

The fact that we may even see two versions of this bill, and possibly accompanying reports, will be progress as compared to last year’s situation. As you remember, in FY 2012, the Senate completed their work on the bill – which includes health and education programs and is often the most contentious of all 12 appropriations bills – but the House could not reach an agreement. A bill was never voted out of the House Committee and a report was never issued. This gave Senate staff a negotiating advantage when the bill was rolled into an omnibus and many provisions and report language that were “House priorities” never had a chance to make it into the larger package.

Given that this still stings for House staff, there seems to be a renewed investment in moving bills forward this year. That being said, there is no end game in sight. It seems to be almost a done deal that there will be continuing resolution that will keep funding at FY 12 levels from September through the election into a likely ugly lame duck session. But then what? The Supreme Court decision on health reform, LHHS bills with different bottom lines, a desire to cut and save, and sequestration looming means that it will likely be quite an interesting holiday season!