THE ADMINISTRATIVE PRESIDENCY AND FRACTIOUS FEDERALISM: LESSONS FROM OBAMACARE - FRANK J. THOMPSON Presented by
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
LEADERSHIP
INSIGHTS
THE ADMINISTRATIVE PRESIDENCY
AND FRACTIOUS FEDERALISM:
LESSONS FROM OBAMACARE
Presented by
FRANK J. THOMPSON
AT THE AMERICAN SOCIETY FOR PUBLIC ADMINISTRATION
2014 ANNUAL CONFERENCE
OFFICERS
Allan Rosenbaum, President
Maria P. Aristigueta, President Elect
Susan T. Gooden, Vice President
Stephen E. Condrey, Immediate Past President
William P. Shields, Jr., Executive Director
NATIONAL COUNCIL
Michael J. Ahn
Ines Falo Beecher
J Paul Blake
Michael Brintnall
William Ciaccio
Galia Cohen
Paul A. Danczyk
Dovie Denise Dawson
Suzanne Discenza
Nancy R. Foye-Cox
Michael L. Hall
Kalu Kalu
Ronnie Korosec
Gedeon M. Mudacumura
Sharon Mastracci
M. Jae Moon
Tonya T. Neaves
James Nordin
ABOUT THE AMERICAN SOCIETY FOR PUBLIC ADMINISTRATION
The American Society for Public Administration is the largest and most prominent professional
association for public administration. With a diverse membership of approximately 8,000
practitioners, teachers and students, it is dedicated to advancing the art, science, teaching and
practice of public and non-profit administration, ASPA serves as the principal organization for
linking theory and practice within the field.
The views expressed in this publication are those of the presenter.
They do not necessarily reflect the views of ASPA as an institution.
It is a great honor for me to deliver of powers system, to the executive branch of
the Stone Lecture, named for an government. With this significant shift has
come increasing interest by presidents and
indefatigable trailblazer on behalf top political executives in shaping discretion
of public affairs education. My in ways that profoundly influence how federal
focus today is the administrative programs are implemented. My definition of
the administrative presidency rests with the
presidency, intergovernmental
kinds of actions that presidents and political
grant programs and federalism. appointees take to reshape public programs
I am going to address this in the absence of congressional approval. It
topic within the context of the is done mainly through the implementation
process.
Affordable Care Act, which even
President Obama now calls THE ADMINISTRATIVE PRESIDENT:
Obamacare. WHAT THE LITERATURE TELLS US…
AND DOESN’T
When considering administrative federalism,
it is important to recognize the inherit There exists a stream of literature on
tension between the national government the administrative presidency; the early
and the states. Look to James Madison and work focused on the ability of the White
Federalist Paper Number 46; we see that this House to influence programs through
tension is by design. At the same time, what political appointments, the budget
Madison probably would not have anticipated process, reorganizations and its use of the
as readily—and quite possibly would have Administrative Procedure Act to promulgate
found disturbing—is the degree to which this rules. Another wave of literature about the
friction is today rooted in partisan faction. administrative or unilateral presidency has
focused on executive orders, presidential
As he was engaged in a vigorous Republican proclamations and signing statements.
presidential primary debate in September Indeed, the study of executive orders
2011, Governor Mitt Romney promised and their implementation has become a
that, if elected, he would do all he could to cottage industry. This research has been
give states a waiver from any obligation illuminating from an empirical perspective.
to implement the Affordable Care Act. Absent has been a discussion of whether an
When he was nominated for president, this administrative presidency can exist when the
promise became part of the Republican federal government does not rely on federal
Party platform. I can think of no better agencies or even private contractors to deliver
illustration of the significant shift in major programs, but instead on the states.
discretionary power, within our separation
THE ADMINISTRATIVE PRESIDENCY AND FRACTIOUS FEDERALISM: LESSONS FROM OBAMACARE 1The federal government depends on states expanding health care coverage to 30 million
and localities to implement a wide range of Americans who lacked insurance.
critical domestic programs. In these cases,
states and localities are front and center The ACA has three main pillars. First is
as the implementing agents of the federal the expansion of Medicaid, the federal grant
government. Oftentimes, the literature program to the states established during the
portrays implementation as being in the War on Poverty. Prior to the ACA’s passage,
hands of a professional bureaucratic complex Medicaid covered more than 65 million low
in which similarly trained professionals at income Americans annually, a significant
the national and state levels get together, number for the U.S. health insurance system.
collaborate, bargain and negotiate. The ACA sought, with certain exceptions,
Intergovernmental management has been to expand coverage to all non-elderly, non-
central to this perspective. Striking in the disabled people with incomes up to 138
current era is the degree to which that percent of the federal poverty line. States
portrayal is not helpful in understanding were to implement the expansion, and the
more conflictual programs, as Obamacare federal grant to them would be extraordinary.
illustrates. Starting in 2014 and for three years, the
federal government would pay the entire tab
More recent literature has focused on for covering these people. After that time,
waivers as a tool of presidential leadership. the match rate would diminish to a still quite
These congressional grants of authority robust 90 percent.
to the executive branch are prominent
with Medicaid, No Child Left Behind and The second pillar consists of the health
elsewhere. They are a major tool. insurance exchanges or marketplaces—the
Costco’s of health insurance—that offer
THE AFFORDABLE CARE ACT regulated insurance products. Those with
incomes between 138 and 400 percent of
In the context of intergovernmental programs, the federal poverty line would get a federal
what prompts the White House to want to subsidy on a sliding scale to purchase
get involved? What do presidents hope to the insurance. There would be a separate
accomplish? What strategies do they employ? exchange for small businesses, as well. As a
And, do they succeed or fail in pursuing these matter of intergovernmental management,
types of objectives? Let me examine the case this mode of implementation is called
of Obamacare. Some background: The Patient partial pre-emption. States would have the
Protection Affordable Care Act (ACA) passed opportunity to run an exchange, getting fairly
in March 2010; more than 1,000 pages long, it significant federal funding to do so. If a state
covers an incredible number of subjects, some did not, the federal government would.
of them peripherally related to the goal of
THE ADMINISTRATIVE PRESIDENCY AND FRACTIOUS FEDERALISM: LESSONS FROM OBAMACARE 2In many ways, Obamacare is the
poster child for the three-decade
trend toward greater partisan
polarization in our political system.
The third pillar, of course, is the so-called management and implementation. There
“mandate.” If you do not have insurance, you is intense, attitudinal opposition to the
are supposed to pay a tax penalty. Unlike law, largely rooted in state policymakers’
some European societies, there are no partisan ideological identities. There has
additional penalties for not having insurance. been active opposition in the courts and
intergovernmental lobbying. And, of course,
The ACA has delegated a huge amount there has been flat-out reluctance by many
of discretion to the executive branch; state policymakers to become involved
forty provisions require or permit the in implementation. There is substantial
bureaucracy to interpret the statute under pressure on governors and state legislators
the Administrative Procedure Act. Still other to be partisan team players, regardless of
provisions call upon federal administrators to whether they are Democrat or Republican.
establish programs and procedures, without
any reference about doing so, through the As it tried to cope with this polarized context,
formal administrative rule-making process. the Obama administration considered the
party that controlled state governments. In
FRACTIOUS FEDERALISM 24 states, Republicans controlled both houses
of the legislature and the governor’s office.
In many ways, Obamacare is the poster child Democrats, in contrast, controlled thirteen, and
for the three-decade trend toward greater the rest were a mixed bag. The administration
partisan polarization in our political system. knew that it would have to defuse Medicaid
The ACA passed Congress without a single expansion as a partisan ideological issue to
Republican vote, and key Republican leaders achieve the program’s coverage objectives. As
have been quite vocal that they expect its a result, it undertook four strategies to entice
implementation to fail. It is no accident that greater state participation.
President Obama and Health and Human
Services Secretary Kathleen Sebelius avoided The first—preserve an all-or-nothing
saying, “Professional career civil servants: approach—may initially appear counter-
Implement and tell us how it goes.” As a intuitive and deserves explanation. Following
signature initiative of the president, the the 2012 Supreme Court decision making
administration has been heavily involved in the Medicaid expansion voluntary, numerous
forging strategies to implement the ACA. Republican governors approached the health
and human services secretary and proposed,
This polarization has spilled over into “We might do part of the Medicaid expansion
what I call fractious federalism, and which if you give us the 100 percent match. We don’t
Tim Conlon and Paul Posner call partisan know how to do the whole thing—the 138
ideological federalism. It is a departure from percent—but maybe we could insure single
what we usually see with intergovernmental adults up to 50 percent.” The administration
THE ADMINISTRATIVE PRESIDENCY AND FRACTIOUS FEDERALISM: LESSONS FROM OBAMACARE 3The Obama administration has very artfully
employed waivers, an enormously valuable
presidential tool, especially as it has used them
to bargain with and coax governors.
said no. Its calculation was that the federal Finally, the Obama administration has very
subsidies for the expansion were substantial artfully employed waivers, an enormously
and that many state-level interests, such as valuable presidential tool, especially as it
hospitals, were supportive. has used them to bargain with and coax
governors. The pitch: “I am going to let you
Second, President Obama reassured states do things you’ve long wanted to do; in return,
about funding. In 2011, the president you’ve got to give me something, as well.”
indicated that he might be willing to sacrifice Classic bargaining and negotiation mark
some Medicaid spending as part of a grand the process. One of the most effective types
bargain that never materialized. After in diffusing partisan tension has been the
negotiations with Speaker Boehner fell apart, premium assistance waiver, where states do
several governors warned the president that not enroll traditional Medicaid beneficiaries
they and their colleagues would never go in the regular program, but on the exchanges.
along with expansion if they thought that Some Republicans like this approach because
funding would be pulled from their states. As they believe it facilitates the Costco model of
a result, President Obama declared he would individuals going out and buying insurance.
never do that, and nothing since has indicated Democrats have found it somewhat appealing,
that cutting Medicaid would be part of an too, because Medicaid has not paid many
overall budget strategy. providers very well; it would enable poor
individuals to access mainstream coverage
The third strategy was to incentivize interest more effectively.
groups to pressure state policymakers to
expand Medicaid. State hospital associations What has been the result in terms of
were front and center, especially given that Medicaid expansion? More than half of those
the ACA decreased certain federal funds states with bipartisan (divided) control of
for hospitals that serviced disproportionate state government have moved forward.
numbers of uninsured and low-income Only 17 percent of unified Republican states
people. Why? The thought was that covering have done so, compared to 100 percent of
those previously uninsured would make Democratic-controlled states.
the subsidies unnecessary. Some hospital
association leaders went along with it, but The Obama administration also has pursued
those in other states realized that they were strategies to encourage states to operate
not only going to be losing the federal subsidy, their own insurance exchanges rather than
but that their states would not move to insure turn the job over to federal administrators.
these poor people. The Obama administration I do not have time to elaborate on them,
agreed and urged them to redouble their but federal creativity in establishing state
efforts to persuade state policymakers to partnerships deserves mention. When many
expand Medicaid. states indicated that they did not want to run
THE ADMINISTRATIVE PRESIDENCY AND FRACTIOUS FEDERALISM: LESSONS FROM OBAMACARE 4the exchange, the Obama administration bent over backward to administratively create via the Federal Register a “partnership,” through which states did not have to assume full responsibility but instead partnered with the federal government. As to the broader implications for the administrative presidency and intergovernmental management, the key takeaway is that despite obstacles to intergovernmental implementation, there have been upsides to the strategies pursued. An increasing number of Republican states have thought about “coming on,” making it not a partisan ideological model but a more pragmatic one. I have focused on only one case; obviously, there are limits to generalizations. Conducting a comparative analysis in another policy area, such as education and No Child Left Behind, would be fascinating, given that it is a case where the president also has used waivers to reshape a program in the absence of congressional action. THE ADMINISTRATIVE PRESIDENCY AND FRACTIOUS FEDERALISM: LESSONS FROM OBAMACARE 5
ABOUT THE SPEAKER
Dr. Frank J. Thompson is distinguished professor at Rutgers University-Newark
School of Public Affairs and Administration. A nationally renowned scholar of
politics and administration, implementation, public management, and health policy,
he received a Robert Wood Johnson Investigator Award to study the evolution of
Medicaid during the Clinton, G.W. Bush, and Obama administrations. The research
led to Thompson’s book, Medicaid Politics: Federalism, Policy Durability, and Health
Reform (Georgetown University, 2012), a thorough examination of the genesis and
expansion of Medicaid and its impact on the American health care system. This
lecture derives from an article that will be published in Publus: The Journal of
Federalism in Summer 2014.
Thompson is a fellow of the National Academy of Public Administration, a
past president of the National Association of Schools of Public Affairs and
Administration, and the former executive director of the National Commission
on State and Local Public Service (Winter Commission). He has received several
awards, including the Donald C. Stone Distinguished Scholar Award, for his
accomplishments in the field of intergovernmental relations and management.
In 2008, Thompson joined the School of Public Affairs and Administration at Rutgers
University in Newark and concurrently became an affiliated faculty member of the
Rutgers Center for State Health Policy in New Brunswick. Prior to his tenure at
Rutgers, he served as dean of the Rockefeller College of Public Affairs and Policy at
the University at Albany, State University of New York. Thompson is an alumnus of
the University of Chicago where he earned his bachelor’s degree in political science
and the University of California, Berkeley, where he received his doctoral and
master’s degrees in the same discipline.
Each year, the ASPA Endowment sponsors the Donald C. Stone Distinguished Guest
Lecture at the ASPA Annual Conference. First presented in 1995, the Stone Lecture
features an outstanding academic and scholar. The lecture reflects Stone’s varied
interests and contributions to the field of public administration.This publication is one of the many
benefits ASPA provides its members.
1301 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004
www.aspanet.org
@ASPANationalYou can also read
