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22–146 2017

EXAMINING THE USE OF ADMINISTRATIVE 

ACTIONS IN THE IMPLEMENTATION OF 

THE AFFORDABLE CARE ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT 

OF THE

COMMITTEE ON WAYS AND MEANS 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MAY 20, 2015 

Serial No. 114–OS04 

Printed for the use of the Committee on Ways and Means 

( 


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COMMITTEE ON WAYS AND MEANS 

PAUL RYAN, Wisconsin, Chairman 

SAM JOHNSON, Texas 

KEVIN BRADY, Texas 

DEVIN NUNES, California 

PATRICK J. TIBERI, Ohio 

DAVID G. REICHERT, Washington 

CHARLES W. BOUSTANY, JR., Louisiana 

PETER J. ROSKAM, Illinois 

TOM PRICE, Georgia 

VERN BUCHANAN, Florida 

ADRIAN SMITH, Nebraska 

LYNN JENKINS, Kansas 

ERIK PAULSEN, Minnesota 

KENNY MARCHANT, Texas 

DIANE BLACK, Tennessee 

TOM REED, New York 

TODD YOUNG, Indiana 

MIKE KELLY, Pennsylvania 

JIM RENACCI, Ohio 

PAT MEEHAN, Pennsylvania 

KRISTI NOEM, South Dakota 

GEORGE HOLDING, North Carolina 

JASON SMITH, Missouri 

ROBERT J. DOLD, Illinois 

SANDER M. LEVIN, Michigan 

CHARLES B. RANGEL, New York 

JIM MCDERMOTT, Washington 

JOHN LEWIS, Georgia 

RICHARD E. NEAL, Massachusetts 

XAVIER BECERRA, California 

LLOYD DOGGETT, Texas 

MIKE THOMPSON, California 

JOHN B. LARSON, Connecticut 

EARL BLUMENAUER, Oregon 

RON KIND, Wisconsin 

BILL PASCRELL, JR., New Jersey 

JOSEPH CROWLEY, New York 

DANNY DAVIS, Illinois 

LINDA SA ́ NCHEZ, California 

JOYCE MYER, Staff Director 

JANICE MAYS, Minority Chief Counsel and Staff Director 

SUBCOMMITTEE ON OVERSIGHT 

PETER J. ROSKAM, Illinois, Chairman 

MIKE KELLY, Pennsylvania 

PAT MEEHAN, Pennsylvania 

GEORGE HOLDING, North Carolina 

JASON SMITH, Missouri 

KRISTI NOEM, South Dakota 

JIM RENACCI, Ohio 

JOHN LEWIS, Georgia 

JOSEPH CROWLEY, New York 

CHARLES B. RANGEL, New York 

LLOYD DOGGETT, Texas 


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C O N T E N T S 

Page 

Advisory of May 20, 2015 announcing the hearing .............................................. 2 

WITNESSES 

Jonathan H. Adler, Johan Verheij Memorial Professor of Law, and Director, 

Center for Business Law and Regulation, Case Western Reserve University 

School of Law ........................................................................................................ 42 

Elizabeth P. Papez, Partner, Winston & Strawn LLP, Member, Adjunct Faculty, George Washington University Law School, Former Deputy Assistant 

Attorney General, Office of Legal Counsel, U.S. Department of Justice ......... 57 

Grace-Marie Turner, President, Galen Institute .................................................. 28 

Robert N. Weiner, Partner, Arnold & Porter LLP ................................................ 70 

SUBMISSIONS FOR THE RECORD 

The Honorable Peter J. Roskam ............................................................................. 110 

The Honorable Jim Renacci .................................................................................... 113 

Andy Grewal, The University of Iowa, College of Law ......................................... 133 


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EXAMINING THE USE OF ADMINISTRATIVE 

ACTIONS IN THE IMPLEMENTATION OF 

THE AFFORDABLE CARE ACT 

WEDNESDAY, MAY 20, 2015 

U.S. HOUSE OF REPRESENTATIVES, COMMITTEE ON WAYS AND MEANS, SUBCOMMITTEE ON OVERSIGHT, Washington, DC. 

The Subcommittee met, pursuant to call, at 10:06 a.m., in 

Room 1100, Longworth House Office Building, Hon. Peter Roskam 

[Chairman of the Subcommittee] presiding. 

[The advisory announcing the hearing follows:] 


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ADVISORY 

FROM THE COMMITTEE ON WAYS AND MEANS 

SUBCOMMITTEE ON OVERSIGHT 

FOR IMMEDIATE RELEASE CONTACT: (202) 225–3625 

Wednesday, May 13, 2015 

No. OS–04 

Chairman Roskam Announces Hearing on 

Examining the Use of Administrative Actions 

in the Implementation of the Affordable Care Act 

Congressman Peter Roskam (R–IL), Chairman of the Subcommittee on Oversight, 

today announced that the Subcommittee will hold a hearing titled, ‘‘Examining the 

Use of Administrative Actions in the Implementation of the Affordable Care Act.’’ 

The hearing will take place on Wednesday, May 20, 2015, in Room 1100 of 

the Longworth House Office Building, beginning at 10:00 a.m. 

Oral testimony at this hearing will be from the invited witnesses only. However, 

any individual or organization not scheduled for an oral appearance may submit 

a written statement for consideration by the Committee and for inclusion in the 

printed record of the hearing. 

DETAILS FOR SUBMISSION OF WRITTEN COMMENTS: 

Please Note: Any person(s) and/or organization(s) wishing to submit written comments for the hearing record must follow the appropriate link on the hearing page 

of the Committee website and complete the informational forms. From the Committee homepage, http://waysandmeans.house.gov, select ‘‘Hearings.’’ Select the hearing for which you would like to make a submission, and click on the link entitled, 

‘‘Click here to provide a submission for the record.’’ Once you have followed the online instructions, submit all requested information. ATTACH your submission as a 

Word document, in compliance with the formatting requirements listed below, by 

the close of business on Wednesday, June 3, 2015. For questions, or if you encounter technical problems, please call (202) 225–3625 or (202) 225–2610. 

FORMATTING REQUIREMENTS: 

The Committee relies on electronic submissions for printing the official hearing 

record. As always, submissions will be included in the record according to the discretion of the Committee. The Committee will not alter the content of your submission, 

but we reserve the right to format it according to our guidelines. Any submission 

provided to the Committee by a witness, any materials submitted for the printed 

record, and any written comments in response to a request for written comments 

must conform to the guidelines listed below. Any submission not in compliance with 

these guidelines will not be printed, but will be maintained in the Committee files 

for review and use by the Committee. 

1. All submissions and supplementary materials must be submitted in a single 

document via email, provided in Word format and must not exceed a total of 10 

pages. Witnesses and submitters are advised that the Committee relies on electronic 

submissions for printing the official hearing record. 

2. All submissions must include a list of all clients, persons and/or organizations 

on whose behalf the witness appears. The name, company, address, telephone, and 

fax numbers of each witness must be included in the body of the email. Please exclude any personal identifiable information in the attached submission. 


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3. Failure to follow the formatting requirements may result in the exclusion of 

a submission. All submissions for the record are final. 

The Committee seeks to make its facilities accessible to persons with disabilities. 

If you are in need of special accommodations, please call 202–225–1721 or 202–226– 

3411 TDD/TTY in advance of the event (four business days notice is requested). 

Questions with regard to special accommodation needs in general (including availability of Committee materials in alternative formats) may be directed to the Committee as noted above. 

Note: All Committee advisories and news releases are available online at 

http://www.waysandmeans.house.gov

f 

/. 

Chairman ROSKAM. The Committee will come to order. 

Welcome to the Ways and Means Oversight Subcommittee hearing on Examining the Use of Administrative Actions in the Implementation of the Affordable Care Act. 

I will begin with an opening statement, and then we will yield 

to Mr. Lewis, the Ranking Member, when he arrives. He is on his 

way, but he has asked us to move ahead. 

So, with that, today we are going to be taking a look at administrative actions, that is, unilateral actions by the President and the 

executive branch as they implement and administer the President’s 

healthcare law. The question we examine today is: If one President 

could ignore parts of the healthcare law, can another President ignore the whole thing? 

The issue goes to the core of our Committees’ mission to conduct 

rigorous oversight. House rule 10 empowers us, as a Subcommittee, 

to determine whether laws and programs are being implemented 

and carried out in accordance with the intent of Congress. And 

while we consider these issues today, it is also important to remember the larger context. 

The Affordable Care Act was passed by Democratic majorities in 

the House and Senate in 2010. It was signed into law by President 

Obama. If a President and Congress of one party can enact a law, 

but reconsider and alter it after enactment, then what can a different President in Congress do with the same law or any other? 

Do laws matter at all? What about the votes of the American people? Do they matter? 

We are focusing specifically on executive actions relating to the 

Affordable Care Act, but don’t lose sight of the critical importance 

of these issues at the core of our representative democracy. The 

question before us is not whether the Administration is implementing the healthcare law. It is whether the Administration is 

undermining the rule of law. And I believe the answer is yes. 

The Administration is too eager to take unilateral actions to 

solve thorny political problems. It has created a false narrative that 

Congress is unwilling to take on these challenges. In fact, as we 

will hear today, Congress has amended the Affordable Care Act 

over a dozen times. The Administration’s problem is acting out of 

expediency and not following the Constitution. 

So the old phrase comes to mind that, ‘‘The road to hell is paved 

with good intentions.’’ But the Constitution is clear. Congress 

writes the law. The President executes the law, period. The PresiVerDate Sep 11 2014 07:24 Feb 13, 2017 Jkt 022146 PO 00000 Frm 00007 Fmt 6633 Sfmt 6602 I:\WAYS\WAYSPS\22146\22146.XXX 22146

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dent cannot rewrite the law. If the President can make the law up 

as he pleases, there is no accountability. 

Putting this incredible amount of power in the hands of one person completely erodes the delicate balance that the Founding Fathers established through checks and balances. Ultimately, too, it 

takes away the meaning of our votes as American citizens. 

It is precisely because of this issue and the significance and the 

scope of the President’s healthcare law that yesterday I introduced 

legislation to create a special Inspector General to monitor the Affordable Care Act. It is modeled after the special Inspectors General that Congress has created for Iraq and Afghanistan reconstruction and the Troubled Asset Relief Program, that together 

have produced taxpayer savings of almost $10 billion. 

So an enterprise as big and complicated as national healthcare 

reform surely deserves the same level of oversight as the earlier 

endeavors. And, without objection, I will insert the findings of my 

SIGMA Act into the record. 

[The submission of The Honorable Peter Roskam follows:] 


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Chairman ROSKAM. Our hearing today will review some of the 

changes the President has made to the Affordable Care Act without 

congressional approval and the impact of those changes. 

And, to do this, we have four extremely knowledgeable witnesses: 

Elizabeth Papez, a partner at the law firm of Winston & Strawn; 

Jonathan Adler, Professor of Law at Case Western Reserve University; Grace-Marie Turner, President of the Galen Institute; and 

Robert Weiner, a partner at the law firm of Arnold & Porter. 

And I want to thank all of you for attending and I look forward 

to the insight and perspectives that you have. I know you are busy 

people. You are being very generous with us with your time today, 

and I am grateful. 

Mr. RANGEL. Mr. Chairman. 

Chairman ROSKAM. Mr. Rangel, let me finish my statement 

and then I will—— 

Mr. RANGEL. I apologize. That pause was misinterpreted by me. 

Chairman ROSKAM. No trouble. Let me just continue, and I will 

recognize you. 

Defenders of the law claim that the President’s actions are routine uses of Administration discretion. However, as we will discuss 

today, Administration discretion is not unlimited. 

In many ways, the actions are unprecedented in American history, as some of our witnesses will describe. I expect one witness 

will shrug this off. But I don’t think the Founders would shrug. 

And, in fact, they were very apprehensive about just this situation. 

And here is the proof: Our second President, John Adams, wrote 

this in part in the Massachusetts constitution. He said this: ‘‘In the 

government, the legislative department shall never exercise executive and judicial powers, the executive shall never exercise legislative and judicial powers, and judicial shall never exercise legislative and executive powers, so that it may be a government of laws 

and not of men.’’ 

I want to emphasize that this is not hypothetical. This is not esoteric. This is not distant. This is at the very core of who we are 

as people. The unchecked use of unilateral executive action creates 

a dangerous and damaging precedent. And today we are here to 

learn a cautionary tale: Beware of a bad process that yields the result you desire. It can just as easily be used against you. 

In closing, this principle was brilliantly portrayed in the film, ‘‘A 

Man for All Seasons.’’ You will recall that this is the story of Sir 

Thomas More. And in a dramatic scene, an associate of his made 

the argument that he would cut down all the laws of England in 

order to get at Satan himself. More retorts that he would give the 

devil the benefit of the law for his own safety’s sake. And let’s not 

forget that laws exist to protect us. 

I know that Members of both sides of this Committee have 

strong feelings on this issue. I am sensing that Mr. Rangel is so 

enthusiastic that he is seeking my recognition even now. And I look 

forward to our discussion. 

And, with that, Mr. Rangel, I am happy to recognize you. We are 

waiting for Mr. Lewis, who asked us to go ahead. But, with 

that—— 

Mr. RANGEL. I want to appreciate your recognition. 


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I have in the audience a young student that is following me 

around for today for the purposes of learning more about the Congress. And so I can’t thank you enough for the eloquent history lesson that you have given today. And notwithstanding some people’s 

thought, I was not really here when the Founding Fathers drafted 

the Constitution. 

But it would help, even before Mr. Lewis gets here, as to where 

would you want this hearing to conclude, because I am still looking 

for that avenue where we can reach a bipartisan conclusion. 

And having seen your party ask for repeal of this law 55 times 

and having the U.S. Supreme Court saying that it is constitutional 

and recognizing that, in counting the numbers, it doesn’t look like 

we are going to override a veto and, since Larry Foster is here, before Mr. Lewis can get here, what is the object of this hearing 

today? What would you want to conclude? 

Because I am enthusiastic to try to show Mr. Foster that I am 

so anxious before the President’s term is over to find out that you 

decided to do something constructive to make the Affordable Care 

Act more effective. 

Chairman ROSKAM. Well, Mr. Rangel, I appreciate that opportunity to bring to your attention these witnesses, who I think are 

going to give us a perspective that is incredibly valuable. 

And let’s turn to them and invite them to give us some insight. 

And I think that they are going to span a spectrum and give us 

a wide range of opinions on some of these areas. 

And so my hope is that both you and the student who has been 

following you for this period of time will come away edified from 

this. And I look forward to your comments as well. 

Now, the Ranking Member, Mr. Lewis, has joined us. 

Mr. RANGEL. Well, he is not only our Ranking Member, but he 

is an icon and a breath of fresh air for the entire world. And I am 

so glad that Mr. Foster is able to see that we have some outstanding statesmen on our Committee. And thank you so much for 

the courtesy, Mr. Chairman. 

Chairman ROSKAM. I will echo your descriptions of Mr. Lewis. 

And with Mr. Lewis, that is as good as it gets. We will turn to 

you for your opening statement. 

Mr. LEWIS. Thank you very much, Mr. Chairman and fellow 

Members on both sides. I want to thank you for being so patient. 

I want to apologize to you, Mr. Chairman. I was down at the controller’s office speaking to all of the staff there and other agencies, 

but I am honored and delighted to be here. 

I want to thank the witnesses for being here. Good morning. 

Mr. Chairman, thank you for holding this hearing. I have said 

that it is good to be here to see each and every one of you. 

Let me begin by saying what I have said at countless other hearings: The Affordable Care Act works. It was the right thing to do. 

It was the just thing to do. And it was long overdue. 

I believe in my core that health care is a basic human right. It 

is not something that should be reserved for a select few, for the 

rich, or for the wealthy. The health reform law provides real benefits to American families. Over 16 million people who were previously uninsured now have health insurance. 


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Under the law, more than 100 million people with preexisting 

conditions can no longer be denied coverage. Millions of young people can stay on the insurance of their parents until age 26. In addition, over 9 million hardworking Americans across the United 

States receive tax credit to make their health insurance affordable, 

just as Congress intended. 

Mr. Chairman, today’s hearing should not be a platform for continued attacks on the health reform law. Instead, we should come 

together and focus on how to further improve health care for all 

Americans. Each and every one of us has a responsibility to make 

this country better for the least among us and for generations yet 

unborn. We have a duty to speak up and speak out on behalf of 

those that have no one to stand up for them. 

The Administration acted, as Republican and Democratic Administrations have before them, to implement a law in a manner that 

considers and reflects the importance of the mission. It is time for 

each and every one of us to face the truth. The Affordable Care Act 

is the law of the land, and we must do all we can to strengthen 

and improve it. Tearing it down is simply not an option. 

Thank you, Mr. Chairman. 

Chairman ROSKAM. Thank you, Mr. Lewis. 

I think this debate is framed up very, very well. So Mr. Lewis— 

I want to pick up on one of his comments in that this is not really 

a forum today to debate the merits of the Affordable Care Act. 

That is well litigated. It is, you know, well explained. We have 

very strong feelings. This Committee has been at the heart of some 

of those debates, and it is really no secret what our different views 

are. 

So we want to go deeper than that. We want to go now to this 

foundational question. That is what I would characterize as unilateral action. Others may characterize it differently. But you know 

what I am saying, the use of executive action and whether it is operating in the framework that is legal. 

So we will hear from our panel in this order: Grace-Marie Turner, President of the Galen Institute; Jonathan Adler, the Johan 

Verheij Memorial Professor of Law and Director of the Center for 

Business Law and Regulation at the Case Western Reserve University School of Law; Elizabeth Papez, partner at Winston & Strawn 

and a Member of the Adjunct Faculty at the George Washington 

University Law School, who was formerly Deputy Assistant Attorney General of the Office of Legal Counsel at the U.S. Department 

of Justice; and Robert Weiner, a partner at Arnold & Porter. 

The Committee has received your written statements, and they 

will be made a formal part of the hearing record. You will have 5 

minutes to deliver your remarks. 

And, Ms. Turner, we will begin when you are ready. Thank you. 

STATEMENT OF GRACE-MARIE TURNER, 

PRESIDENT, GALEN INSTITUTE 

Ms. TURNER. Thank you, Chairman Roskam. Thank you, Ranking Member Lewis and Members of the Committee. I really appreciate the opportunity to talk today with you about the Administration’s actions in implementing the Affordable Care Act. 


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Professor Adler and Ms. Papez will discuss in their testimony 

some of the more prominent regulatory changes the Administration 

has made contrary to the language of the statute. The Galen Institute has chronicled many of the changes made to the ACA, and I 

will be talking about some of the other less prominent ones today. 

And we count, as I said, at least 50 changes. Thirty-one have 

been made by the Administration, 17 passed by Congress and 

signed into law by the President, and two made by the Supreme 

Court. I have appended that list to my testimony. 

Just a few examples. Allowing people to self-attest to their eligibility for subsidies was not part of the law. In newly discovered 

conflicts between the regulation and the statute, the law provides 

exchange subsidies for people under 100 percent of poverty as well 

as unlawful immigrants, contrary to the language of the statute. 

And it also provides illegal bonus payments to try to postpone 

cuts to the Medicare Advantage plans. The nonpartisan Government Accountability Office called for the Administration to cancel 

this $8.3 billion program when it was giving quality bonus payments to plans that were mediocre and sometimes not even that. 

The Administration has ignored the GAO and Congress’ demands 

to stop the illegal payments. 

The Administration has also been criticized for its lack of transparency in the financing and implementation of the law. For example, the Administration last year issued $300 million in solvency 

funds to co-ops. There has been no explanation of the criteria used 

for making those decisions and why some received added funding 

and others did not. 

In addition, Ways and Means Chairman Paul Ryan has asked Treasury to explain $3 billion that it has been spending in costsharing reduction spending never authorized by Congress. The 

issue is part of a lawsuit filed by House Speaker John Boehner. 

The Administration claims the payments were legal, but it undercut its own argument when HHS asked Congress for appropriation to finance the payments. Congress refused, but the government continued to make the payments to insurance companies 

anyway. 

There have been numerous instances where the Administration 

has made what many Members of Congress consider to be good 

changes to the law, but not within the statutory authority. And 

Congress has said, ‘‘Okay. We will go along with that’’ and, in fact, 

has passed on a bipartisan basis a number of provisions, for example, when the Administration issued its blog post in 2013 announcing the employer mandate delay. 

The House of Representatives later that month passed legislation 

to say, ‘‘We will give you authorization to delay the mandate.’’ The 

President said he would veto that legislation if it reached his desk, 

which it did not because it died in the Senate. 

The House later that year had bipartisan support for the Keep 

Your Health Plan Act of 2013. It would give legal authority for the 

Administration to delay implementation of some health plans that 

did not comply with ACA requirements. The Administration threatened to veto that as well. The Administration has claimed it has 

made the changes through regulation because Congress has refused 

to consider legislative fixes, but that also is not true. 


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The repeal of the CLASS Act, the repeal of the 1099 reporting 

requirement, and the Medicaid fix all were passed by Congress, 

signed into law by the President, showing that the President is 

able to get Congress to act on changes to the law. The ACA has 

caused enormous disruption throughout the health sector. There 

were fixes that were needed, but the Administration does not have 

the authority to fix the legislation. It must implement it as written. 

Mr. Chairman, I believe the evidence that will be presented 

today shows the need for your call for a special Inspector General 

to monitor the ACA. The Administration has spent—and I would 

say wasted—billions of dollars in taxpayer money in implementing 

the Affordable Care Act with eight different agencies charged with 

overseeing implementation of this law. It is very difficult for any 

one Inspector General to oversee the implementation and to really 

make sure the law is being properly implemented and that the taxpayer dollars are being well spent. 

So I commend you for the SIGMA Act, Mr. Chairman, and I look 

forward to your questions. 

[The prepared statement of Ms. Turner follows:] 


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Chairman ROSKAM. Thank you, Ms. Turner. 

Professor Adler. 

STATEMENT OF JONATHAN H. ADLER, JOHAN VERHEIJ MEMORIAL PROFESSOR OF LAW, AND DIRECTOR, CENTER FOR 

BUSINESS LAW AND REGULATION, CASE WESTERN RESERVE 

UNIVERSITY SCHOOL OF LAW 

Mr. ADLER. Thank you, Mr. Chairman, Ranking Member Lewis, 

and Members of this Subcommittee. I thank you for the invitation 

to testify today on how Federal agencies have been implementing 

the Affordable Care Act. 

As you know, I have serious concerns about the way in which 

various agencies within the Department of Treasury and the Department of Health and Human Services have been implementing 

this law. In my view, they have repeatedly disregarded the plain 

text of the Affordable Care Act and the limits on their statutory authority. 

Whatever the policy merits of the specific administrative actions 

they have taken, there are serious questions about their lawfulness, and these questions should certainly concern Members of this 

Committee, whatever your views of the policy merits of the ACA. 

The core structure of our Constitution divides power among the 

three branches of our Federal Government. All legislative powers 

granted in the Constitution are vested in Congress. Executive 

agencies only have that authority which Congress has delegated to 

them. They have no inherent legislative authority, and they are 

bound by the President’s constitutional obligation to take care that 

the laws are faithfully executed. 

While the executive branch maintains the discretion over how 

the laws are to be enforced, such discretion does not entitle administrative agencies to disregard statutory provisions that are deemed 

unwise or inconvenient, let alone the authority to waive legal obligations that are written into Federal law. 

The constable’s authority to decide not to arrest every lawbreaker is not the authority to waive the law’s obligations, and the 

agency’s authority to allocate resources in accord with the executive branch’s policy priorities does not allow it to disregard unwanted statutory mandates. 

In the context of ACA implementation, Federal agencies have repeatedly failed to uphold the law as it was enacted by Congress. 

There are numerous instances in which Federal agencies have 

sought to waive relevant ACA requirements or implement the law 

in a manner that does not conform to the relevant statutory text 

and the authority that Congress granted. 

Take but one example: Employers that fail to provide adequate 

health insurance under the law are subject to what the Administration deems is a tax. The ACA provides that this tax obligation 

shall apply to months beginning after December 31, 2013. There is 

nothing ambiguous about this language. 

While the Administration has discretion over how vigorously to 

enforce this requirement and whether, for example, to seek penalties for noncompliance, it has no authority to waive the underlying liability, let alone to create subcategories among those emVerDate Sep 11 2014 07:24 Feb 13, 2017 Jkt 022146 PO 00000 Frm 00046 Fmt 6633 Sfmt 6602 I:\WAYS\WAYSPS\22146\22146.XXX 22146

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ployers subject to the requirement and tax liability. Yet, that is 

what the Administration has sought to do. 

The Administration cited no meaningful legal authority for this 

decision. Treasury cited a series of past administrative actions. Yet, 

none of these are remotely comparable. For example, declining to 

seek penalties for noncompliance with certain tax laws is not the 

same thing as waiving a tax liability altogether when that tax liability accrues by operation of law at a date certain. 

Unfortunately, this is not an isolated occurrence. The Administration has repeatedly disregarded statutory limits on its authority 

and cast aside the relevant statutory text in administering the 

ACA. 

Other examples include an attempt to waive the minimum coverage requirement after it was made plain that the ACA would not 

allow individuals who liked their insurance plans to keep them; an 

IRS rule that purports to authorize tax credits in exchanges established by the Department of Health and Human Services, even 

though the ACA only authorizes tax credits in exchanges established by the States; IRS regulations extending tax-credit eligibility 

to some low-income aliens not lawfully residing in the United 

States as well as to some individuals who fall outside the income 

requirements explicitly established by the text of the Act; and the 

Department of Treasury’s decision to issue cost-sharing subsidy 

payments to health insurance companies when Congress has failed 

to make appropriations in the support of such payments. 

Even legal commentators who have been generally supportive of 

the Administration’s implementation of the ACA and the underlying Act have raised serious questions about agencies’ legal authority to take some of these steps. 

University of Michigan Law Professor Nicholas Bagley, for example, wrote in the New England Journal of Medicine that several of 

these actions ‘‘appear to exceed the scope of the executive’s traditional enforcement discretion,’’ and cannot be justified as an exercise of executive branch authority to prioritize limited agency resources. 

At stake is more than the implementation of this particular law. 

Professor Bagley put it well; so, I will quote him again. He said, 

‘‘The Obama Administration’s claim of enforcement discretion, if 

accepted, would limit Congress’ ability to specify when and under 

what circumstances its laws should take effect. That circumscription of legislative authority would mark a major shift of constitutional power away from Congress, which makes the laws, and towards the President, who is supposed to enforce them.’’ 

There may well be good policy justifications for many of the 

measures I have discussed above. I offer no opinion in this testimony as to the policy wisdom of various steps Treasury and HHS 

have taken. My focus is, instead, on the lack of legal authorization 

for these actions. Whatever steps are taken to implement the ACA, 

whether by this Administration or its successors, they must conform to the law. 

Administrative agencies have no warrant to rewrite statutes or 

waive statutorily imposed obligations, no matter how compelling 

the policy arguments in support of such changes may be. The ACA 

was controversial when it was enacted, and many provisions of the 


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law remain controversial today. If they are to be amended, it is the 

job of this Congress, not the job of administrative agencies. 

Mr. Chairman and Members of this Subcommittee, I recognize 

the importance of these issues, and I am certainly willing to answer any questions you may have. Thank you again. 

[The prepared statement of Mr. Adler follows:] 


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Chairman ROSKAM. Thank you. 

Ms. Papez. 

STATEMENT OF ELIZABETH P. PAPEZ, PARTNER, WINSTON & 

STRAWN LLP, MEMBER, ADJUNCT FACULTY, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, 

U.S. DEPARTMENT OF JUSTICE 

Ms. PAPEZ. Thank you, Mr. Chairman, Ranking Member Lewis, 

and Members of the Subcommittee for the opportunity to appear 

here today and discuss the administrative efforts to implement the 

Affordable Care Act. 

Agency implementation is obviously a necessary part of administering complex legislation, but it presents special challenges 

under the ACA because the law calls upon multiple agencies to implement an unusually elaborate and costly network of related Federal and State programs. The statute is 904 pages long and in over 

700 instances directs Federal agencies to set the rules for an array 

of new government programs worth more than $1 trillion. 

The testimony this morning has already addressed various policy 

and legal challenges surrounding some recent agency efforts to implement or, in certain cases, delay implementing some of these programs over the last 5 years. So I thought I would confine my remarks to a few constitutional and governance issues that I think 

transcend the debate over particular programs and underscore why 

agency administration of the ACA presents an especially strong 

case for ongoing legislative oversight by this Subcommittee and 

others. 

As the Chairman noted, the governance issues date back to the 

founding, which recognize the hazards of concentrating power in a 

single person or a body. The U.S. Constitution answers this concern with a Federalist structure. It is often described as the essential basis for a free system of government. It divides authority 

among the three branches of the Federal Government and between 

the Federal Government and the States. 

The so-called separation of powers issues that attend the ACA’s 

administration reflect this constitutional division of authority and 

arise anytime statutes look to Federal agencies to define the scope 

of Federal programs. But these issues demand particular attention 

when its statute relies on agency implementation and discretion to 

the degree ACA does. 

I had the privilege of working on some of these issues during my 

time at the Justice Department and, as a law clerk and, also, as 

a law firm partner, have seen how they can directly and significantly affect the private sector, in fact, in millions of people and 

trillions of dollars of Federal programs. 

The separation of powers issues are already playing out in a 

number of government efforts to implement the statute today. The 

regulations implementing the employer coverage mandate categorically revise certain statutory compliance deadlines and employer 

participation requirements. 

The Treasury Department’s cost-sharing regulations conclude 

that, despite prior Administration requests for annual appropriaVerDate Sep 11 2014 07:24 Feb 13, 2017 Jkt 022146 PO 00000 Frm 00061 Fmt 6633 Sfmt 6602 I:\WAYS\WAYSPS\22146\22146.XXX 22146

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tions, the subsidies actually may be paid from funds permanently 

appropriated for specific tax credits. 

And IRS regulations declare that the premium tax-credit provision expressly directed at insurance exchanges created by a State 

must, nonetheless, be read to encompass exchanges established by 

Federal agencies. 

The Administration has defended these challenged regulations as 

lawful efforts to implement the Act and as appropriate responses 

to perhaps unanticipated shortfalls in funding, State participation, 

and private sector readiness central to the Act’s Affordable Care 

mandate. 

In fact, Mr. Weiner’s written testimony, I think, for this hearing 

points out that some of the regulatory actions now being challenged 

by this Subcommittee and in the courts were directly responsive to 

constituent input. 

There are a couple of things I would say about that. The first is 

that political accountability is obviously important in our system of 

government, but the Constitution limits the extent to which agencies may interpret legislation to address such concerns or encompass new circumstances. 

The second thing I would say is I am familiar with some of the 

examples of past executive branch action that the current Administration cites as precedent for its ACA administration efforts, and 

I frankly don’t think they are comparable in scope or in statutory 

authorization to some of the ACA implementation issues we will 

discuss this morning, nor do I think Supreme Court decisions like 

Heckler v. Chaney are on point. 

Those cases are about the executive branch’s discretion to enforce 

the laws, not to pass by regulation wholesale exemptions from an 

existing statute. That is the kind of executive branch action that 

is equivalent to suspending a law and has long been considered an 

improper intrusion on Congress’ authority. 

The third thing and, I guess, the last thing I would say is, to the 

extent that some of these past examples of executive branch action 

are comparable to the current administrative efforts to implement 

the ACA, they simply illustrate the broader point that adherence 

to separation of powers principles is not a partisan issue. 

As I think even Mr. Weiner’s examples in his written statement 

indicate, they are issues that cut across policies at Administrations, 

which is why their resolution in the healthcare context is incredibly 

important, because it could have consequences for future governments and programs that have nothing to do with health care. 

As these issues unfold in the ACA context and otherwise, I think 

this Subcommittee’s continued exercise of its oversight authority 

will be critical to ensuring implementation of the Act and all of its 

provisions consistent with the separation of powers and Federalism 

limits the Constitution requires. 

Thank you for the opportunity to testify today. 

[The prepared statement of Ms. Papez follows:] 


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Chairman ROSKAM. Thank you. 

Mr. Weiner. 

STATEMENT OF ROBERT N. WEINER, 

PARTNER, ARNOLD & PORTER LLP 

Mr. WEINER. Thank you, Mr. Chairman, Ranking Member 

Lewis, Members of the Committee. I want to make clear that I testify today only on my own behalf. I am not representing any clients. 

Administrative agencies exercise power delegated by Congress 

and oversight to ensure that they are properly doing so. And legislative action, if Congress finds they are not, is integral to the system of checks and balances that underlies our constitutional structure. But I submit that the opponents of the ACA have disrupted 

that system of checks and balances through legal and extralegal efforts to thwart implementation of the law. 

From 7 minutes after the law was signed, litigation has continued unabated to this very day. Other efforts to obstruct implementation and even to discourage individuals and organizations from 

helping families to get insurance have abounded. The Georgia insurance commissioner admitted that the government there was 

doing all it could to obstruct ObamaCare. And I submit that is not 

the rule of law. 

Nevertheless, the Affordable Care Act is working. More than 14 

million people have gained access to insurance. The uninsured rate 

has dropped from 20 percent to 13 percent of the population. Americans can no longer be denied insurance based on pre-existing conditions, and the healthcare price inflation is at its lowest rate in 

50 years. 

Now, Congress can’t anticipate in this Act or in any major legislation the stumbling blocks to implementation, and that is why it 

has given administrative agencies the discretion that is necessary 

to deal with such obstacles, which brings us to the postponement 

of the employer mandate. 

Now, the ACA opponents have portrayed this as inimical to the 

fundamental precepts of our democratic structure. In fact, it was 

within the bounds of administrative discretion, as exercised by 

prior Administrations. As of July 2013, it appeared that business 

wouldn’t be ready to make the required reports about who was getting insurance and how much or that Treasury would be ready to 

process those reports. 

Treasury, therefore, announced transition relief, allowing the IRS 

time to simplify and phase in the reporting requirements—not the 

mandate; the reporting requirement—and it talked about enforcement of the reporting requirement. Now, the problem was, without 

the reporting, it was impossible to enforce the mandate; and, therefore, it was necessary for Treasury to postpone that as well. 

But let’s be clear. The Department didn’t rescind the employer 

mandate nor did it waive it indefinitely. Now, this is hardly an assault on the foundations of the republic. It is an exercise of administrative discretion to facilitate compliance, and there is ample 

precedent. 

Ms. Papez may not think those precedents are on point, but Michael Leavitt, President Bush’s HHS Secretary, described the delay 


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of the mandate as wise and consistent with the phase-in of the 

Medicare prescription drug benefit done in his Administration. 

Now, another major focus of attack is the IRS regulation confirming that subsidies are available to enable consumers to get 

health insurance in States with Federal exchanges. The fundamental tenet of this attack is that there is one and only one permissible interpretation of this statute. 

But, apparently, at least four Supreme Court justices, the Solicitor General, leading experts of statutory interpretation, the House 

and Senate Members and staffers involved in drafting the ACA, the 

principal association of health insurers, the Hospital Corporation of 

America, the American Heart Association, 22 States, plus the District of Columbia, and many others read it the way the IRS did. 

And unless we are going to challenge either the candor or the literacy of those institutions and individuals, that is a permissible 

reading and it is a reading that is consistent with the purpose of 

the statute and that doesn’t gut the statute. 

In short, if the Committee is looking for executive overreach, I 

submit that it is looking in the wrong place. But, with all due respect, I would say, Mr. Chairman, that, on the broader issues, 

there are two ends of Pennsylvania Avenue and that the level of 

administrative activity is reflective of the dysfunction of this institution. 

Congress can pass legislative hammers to deal with administrative overreach. It can deal with problems in the implementation of 

the statute. And it is the inability to do that that has led to administrative actions here. 

Because I think that is ultimately unsustainable, I think that the 

current snapshot of the ebb and flow of power between the executive and the congressional branch is not a basis for long-term concern. Thank you. 

[The prepared statement of Mr. Weiner follows:] 


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Chairman ROSKAM. Well, thank you all. I really appreciate the 

discipline of your testimony. All four of you directly spoke to this 

legal question. And so I am going to encourage my colleagues to 

focus in on that same line of inquiry. 

I am going to go to Mr. Kelly first. 

Mr. Weiner, I just want to give you a heads-up on a question 

that I am going to give to you, but I will ask the question at the 

end. You can think about your response. 

If Congress has been dysfunctional, how is it possible, based on 

Ms. Turner’s observation, that 17 statutory changes have been 

signed into law by President Obama? So if you can marinate in 

that a little bit, we will come back. 

And, with that, I will yield to Mr. Kelly. 

Mr. KELLY. Thank you, Chairman. 

I thank the panel for being here. 

It is interesting we come to these hearings. This really has nothing to do with the healthcare law, but it does have to do with the 

health care of our Constitution. And I think this is the thing that 

probably bothers us more than anything else. 

As I was leaving the office today, I asked our guys—I said, ‘‘Listen, please do me a favor. Look up our oath of office.’’ And I am 

just going to go through this rather quickly. ‘‘I do solemnly swear 

or affirm that I will faithfully execute the office of the President 

of the United States and will, to the best of my ability, preserve, 

protect, and defend the Constitution of the United States.’’ 

I said, ‘‘Okay. Well, give me the definition of an oath.’’ An oath 

is a solemn, usually formal, calling upon God or a God to witness 

to the truth of what one says or to witness that one sincerely intends to do what one says. It is a solemn attestation of the truth 

and viability of one’s words. 

Now, further, Webster’s defines the law as a rule of conduct or 

action prescribed or formally recognized as binding or enforced by 

a controlling authority. 

Now, having listened to all these different testimonies—and I 

read them last night—I really found it interesting. We have really 

gotten beyond the debate right now, and we have tried to go off to 

the side. And there is an old saying out there. It goes something 

like this, ‘‘If you can’t convince them, confuse them.’’ 

And I have looked at what has happened, and I have to tell you, 

from what I do every day—I am an automobile dealer, and I have 

to follow laws as they are written. I don’t have the ability to say, 

‘‘You know what? I don’t particularly care for this part of the law; 

so, I am just not going to follow that.’’ 

Here is another law that, you know what, I don’t know what they 

were thinking about. Obviously, they didn’t look far enough. They 

certainly didn’t look at the private sector. But, then again, I have 

to run a profitable business to stay in business. They don’t. And 

it comes down to where we are today with this discussion. 

It is so difficult for those of us in the private sector to look at 

this and to think that this President or any future President can 

decide at his whim what parts of the law he is going to enforce or 

not enforce. 

So the question then becomes: How do you prepare a business 

model when the rules change every day? It could be something 


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happens that it looks like, ‘‘Well, you know what? We didn’t think 

about that part; so, we will just set that part aside’’ or, ‘‘There 

could be something else that has an influence on what we are going 

to do; so, we will set that part aside.’’ 

So, Ms. Turner, Mr. Adler, Ms. Papez, you are all very good at 

what you said. And I really find this to be very difficult. If this is 

the law—and it is the law and none of us are saying it is not a 

law and we have made changes to this law—my question is: Why 

does this President start to establish a precedent that is so dangerous for every President to follow? Because law is based on precedent. 

And if we can go back in the future, if we can go back and say, 

‘‘Yeah. But let me tell you how it happened back when we had the 

Affordable Care Act, and this is what we decided to do,’’ how in the 

world would anybody living in this country look at any law and 

really look at it as a law? Because this one isn’t a law if it is not 

going to be enforced. And if it is not enforced, it truly is just words 

on paper. It means absolutely nothing. 

And the oaths of office that we have all taken are just words. 

They don’t mean anything. Because if it doesn’t come from your 

heart, if it doesn’t come from who we basically are as Americans, 

and if we make this a political statement and not a statement to 

what you attest to, everything this country stands for, then we are 

missing the point. It is not about health care. It is about the health 

care of our Constitution. 

So if I am off base, please inform me, because I am so confused 

in the private sector as to what actually is the law. And you know 

what? A deadline doesn’t have any influence. It can come and pass 

and it could be changed. 

So how would you advise people in the private sector to look at 

not only this law, but as time goes forward, how should we look 

at any law to prepare to somehow accommodate it or work within 

its confines? I just don’t get it. 

Ms. TURNER. I think, Congressman, that is the reason this 

hearing is so important and it is the reason the challenges before 

the Supreme Court are so important. The President may think that 

he can change the law at his will, but businesses don’t. 

Tens of billions of dollars have been spent by companies inside 

and outside the health sector to comply with this law. Individuals 

have to comply because there are penalties that will be enforced if 

they don’t. So it is not optional for the American people to not comply. 

And for the Administration to set a precedent I think does really 

get to a much larger question than this law. It really is fundamentally the rule of law. And the Supreme Court challenges I think get 

to that fundamental question. 

Mr. KELLY. Let me just ask you one question, because maybe 

there is some confusion in the office of the President. 

But what did the President do before he was elected President? 

My understanding is he came from the academic world. Right? 

Ms. TURNER. He was a constitutional law instructor at the University of Chicago. 

Mr. KELLY. Okay. So there really wouldn’t be much cloudiness 

in his idea of what the Constitution is or what it contained. 


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I thank you all for being here. 

And I yield back. Thank you. 

Chairman ROSKAM. Mr. Rangel. 

Mr. RANGEL. Thank you, Mr. Chairman. 

This is very interesting. I want to welcome all of the witnesses 

and thank them for coming here. I am still trying to figure out why 

you are here and why we are having this hearing. 

This is a very complex piece of legislation. I understand that 

some changes have been made legislatively which have been signed 

into law, which I guess is a good thing. 

I also understand that the President has exercised executive 

privileges in other parts of the law that is very controversial and 

that these issues are before the United States Supreme Court. 

So if, indeed, anything that the executive branch does violates 

the intrusions of legislation, I assume all of you agree that this is 

a proper subject not for the legislative body, but for the courts. 

Are there any provisions that you believe that—any testimony 

that you have of any issues that are not now before the United 

States Supreme Court? And, if there are, what would you believe 

is the constitutional way that we should go? 

This is not the Judiciary Committee. I have worked hard on this 

bill, and other Members have as well. It has been signed into law, 

approved by the Supreme Court. It has been debated. It has been 

voted on half a hundred times. 

And so where does this go? Most of the testimony that is critical 

of the President, it is my understanding, as a lawyer, that that controversy belongs in the United States Supreme Court. It is a contest between the actions of the executive branch and those who differ with him. 

So, Ms. Turner, Mr. Adler, what solution are you expecting your 

eloquent testimony to have on the constitutional issue in this legislative Subcommittee of Ways and Means? 

Mr. Adler. 

Mr. ADLER. Well, I mean, first of all, I think my testimony and 

I think some of the other testimony identify multiple instances 

where the Administration has taken actions that are not yet subject to litigation and may or may not be subject to litigation. Not 

everything the Federal Government does presents a justiciable controversy. There are limits on—— 

Mr. RANGEL. What has the President done that this Congress 

can do anything about? Isn’t it a question of the interpretation of 

his action? 

Mr. ADLER. Not at all. This Congress, as an institution, has a 

long history of conducting oversight to ensure that Federal agencies 

are complying with the letter of the laws that Congress enacts. 

Certainly when—— 

Mr. RANGEL. Mr. Adler, this is not just for this President. This 

is for Presidents that have been and those that follow. 

Mr. ADLER. I agree. 

Mr. RANGEL. Okay. Is not the issue whether or not the President of the United States exceeded his executive authority? Isn’t 

that what this testimony is all about? 

Mr. ADLER. Whether or not the—— 


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Mr. RANGEL. Whether or not the President of the United States 

exceeded his constitutional authority. Isn’t that the issue? 

Mr. ADLER. That is certainly one of the issues. 

Mr. RANGEL. And isn’t it controversial? 

Mr. ADLER. It is controversial. 

Mr. RANGEL. And isn’t it subject to debate by people who have 

honest opinions about what he has done, not only him, but Presidents before him? Isn’t that correct? 

Mr. ADLER. I agree. And that is why it is appropriate for a 

hearing, so that the points of view—— 

Mr. RANGEL. Appropriate for a hearing? Isn’t it appropriate for 

the Supreme Court to decide the issue of whether or not the President acted in a constitutional way? 

If we decide that he did not act, in our legislative opinion, accordingly, what do you want us to do, Mr. Adler, except to file suit in 

the Supreme Court? 

Mr. ADLER. Well, when I first came to Washington, I remember 

then-Commerce Committee Chairman John Dingell, who would 

regularly hold hearings like this, looking at the actions of executive 

agencies and whether or not they complied with statutes. This has 

been going on for decades. 

Mr. RANGEL. With all due respect, you are here. I am here. Will 

you please deal with the issue before this Committee. 

Assuming you are correct in believing that the President exceeded his constitutional responsibility to the people of the United 

States and assuming that this Congress has voted 55 times to indicate their disapproval of the President’s conduct, now, if you want 

to say that this is an extension of trying to get rid of the Act, which 

the Chairman says it is not, then we can ask: Do all of you believe 

the people in the United States should have access to affordable 

health care? Ms. Turner, Mr. Adler, Ms. Papez, Mr. Weiner, is that 

a goal that we should have? 

Mr. ADLER. Sure. 

Mr. RANGEL. Because, if you agree to it, let’s get to how the 

President and the legislature decide it should happen. They have 

decided. The courts have decided. 

And, Mr. Adler, I understand that you have had some input in 

the issue now before the court. Now, there has been a lot of publicity because of the personalities of the Members of this Committee, especially the Subcommittee Chairman, and people want to 

know what has come out of this hearing besides listening to eloquent testimony. 

I submit, Mr. Chairman, that this argument should be across the 

street in the United States Supreme Court. We have things to 

do in this Congress. We have trade bills. We have an economy to 

build up. And if we want to beat up on the President, we have 

done a pretty good job here. Now let the Supreme Court take a look 

at it. 

Does anybody object to what I am saying? Am I making any 

sense at all? Unless you want to talk about the eloquence of the 

arguments in the Supreme Court or go back to the Constitution, as 

our distinguished Chairman had—because it is very interesting 

when you bring up these people. 


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They were not thinking about people who look like me. They 

were not thinking about women. They were not thinking about 

anyone that didn’t hold any land. But in this great country, the 

Constitution has been flexible enough to include all of the things 

that these old white men forgot to include, which is good. 

Having said that, don’t you think this is a judiciary issue? 

Mr. ADLER. Oversight of the executive branch’s enforcement and 

administration of the law has been a proper subject of legislative 

oversight for decades. I have been doing this for over 20 years. 

Mr. RANGEL. After 55 votes—— 

Chairman ROSKAM. The gentleman’s time has expired. 

Mr. RANGEL. Would you consider 55 votes to be proper oversight? 

Chairman ROSKAM. Go ahead, Mr. Adler. Why don’t you bring 

us home. 

Mr. ADLER. I was going to say, you know, I have been doing regulatory policy for over 20 years. I have attended hearings and testified at hearings like this, looking at the actions of executive agencies for about 20 years and looking at the actions of Presidents of 

both parties. 

It has always been Congress’ place to engage in such oversight. 

It is something that should be done without regard for the party 

of the President. And it is particularly important because not every 

action an agency takes that may violate the law can be subject to 

resolution and litigation. 

And many of the examples that have been pointed to in our testimony—— 

Mr. RANGEL. Well, there—— 

Chairman ROSKAM. Look, we have been generous with the 

time. 

Mr. ADLER [continuing]. Are not currently the subject of the litigation and may not even be within article III jurisdiction of the 

Federal courts. 

Chairman ROSKAM. So we are going to turn to Mr. Holding. 

But before we do, I will make an attempt to answer Mr. Rangel’s 

question, and the answer is twofold. 

Number one, silence is assent. So if Congress doesn’t assert itself 

in the form of a hearing, in a subsequent Congress, we would see 

someone on the House floor to say, ‘‘There is no argument here. 

Congress is complicit in this.’’ 

So silence is assent. We all know that. And what we are choosing 

to do is say, ‘‘Look, we are not going to be silent if we are making 

an argument that we think the Constitution has been abused.’’ 

Second, we have a specific admonition from the House, and that 

is under House rule 10. We are to determine whether laws and programs are being implemented and carried out in accordance with 

the intent of Congress. So we are well within our purview. It 

makes perfect sense for us to be discussing that. 

And to give us some more insight, we will now yield to the gentleman from North Carolina, Mr. Holding. 

Mr. HOLDING. Thank you, Mr. Chairman. 

So when the President was trying to sell this healthcare plan, he 

promised over and over again, ‘‘If you like your healthcare plan, 

you can keep it. No one will take it away, no matter what.’’ 


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Now, subsequently, we have learned this was completely false, 

and people who lost the coverage they liked were understandably 

upset and certainly made it a very large issue in the subsequent 

election. So the Administration’s response to this was to unilaterally change the law. 

So, Professor Adler, you know, we can agree that the policy result that individuals shouldn’t be forced to give up the coverage 

they like and that the burden on employers should be limited, but 

the law doesn’t give the Administration that kind of flexibility 

without Congress. Correct? 

Mr. ADLER. Well, certainly the law does not give the Administration the authority to do what it did. It is possible that there are 

other ways the Administration might have been able to extend the 

grandfathering of plans. 

It could have, for example, tried to issue a regulation, redefining 

what constitutes a grandfathered plan by going through the notice 

and comment rulemaking process. 

The Administration chose not to do that. I don’t know if that is 

because they determined that it wouldn’t be quick enough or might 

itself be subject to litigation. But certainly the way the Administration tried to address this issue was not consistent with traditional 

legal principles. 

Mr. HOLDING. Now, Ms. Turner, the Administration’s job is to 

implement the law Congress passed, not to compensate for its 

shortcomings. 

So isn’t it our job, as Members of Congress, to fix the law if it 

doesn’t work? 

Ms. TURNER. Yes, sir. And I think that you did try to do that 

with the provision, the legislation, that was introduced and passed 

on a bipartisan basis in the House that would have allowed the 

legal authority to the Administration to allow those plans to continue even though they were not compliant with other provisions 

of ACA. 

Mr. HOLDING. So when the President says that, you know, he 

had to act unilaterally because the Congress was dysfunctional and 

incapable of acting, that is patently false? 

Ms. TURNER. That is right. You passed that legislation on a bipartisan basis. It died in the Senate. And the President threatened 

to veto it. 

Mr. HOLDING. Now, you mentioned a little bit earlier the cost 

of compliance, healthcare companies, individuals, and so forth. And 

I thought Mr. Kelly brought up a very good point that, you know, 

if you are a business trying to put together a business plan and the 

rules of the game keep changing, then you are going to incur costs. 

So, you know, are you aware of costs incurred by insurance providers when the President unilaterally said, ‘‘All right. I am going 

to go back and I am going to say that, ‘You can keep these plans?’ ’’ 

Do you think that took the insurance companies by surprise? 

Ms. TURNER. Absolutely. And it has caused enormous disruption, and it has actually caused premium increases for individuals 

that they were forced to pay because the healthy people they expected to come into the exchanges did not. They kept their old 

plans. 


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And, as a result, you found more older people with higher health 

costs in the exchanges, which are leading to higher costs. And I believe we are going to see even more of those in the coming year. 

Mr. HOLDING. So when an insurance provider incurs these 

higher costs, you know, they can pass them on to other customers. 

But they can pass some of those costs back to the government as 

well, can’t they? 

Ms. TURNER. Absolutely. Through the subsidies. So taxpayers 

are paying as well. We are paying in a number of ways. Taxpayers 

are paying in the form of higher subsidies as well as individuals 

paying in the form of higher premium costs and out-of-payment 

costs and their networks and deductibles and other costs of insurance. 

Mr. HOLDING. So, I mean, just to close the loop here, when the 

President decides to act unilaterally, you know, making a major 

change in this law, I mean, there are costs to the taxpayers in 

doing that. Correct? 

Ms. TURNER. There are costs to taxpayers. There are costs 

throughout the entire system. And it really makes it extraordinarily difficult for companies to be able to invest in making 

changes that can help to make the law work when the law keeps 

changing, when the regulations keep changing. 

Mr. HOLDING. Thank you, Ms. Turner. 

Mr. Chairman, I yield back. 

Chairman ROSKAM. Mr. Crowley. 

Mr. CROWLEY. Thank you, Mr. Chairman. 

Mr. Weiner, in your written testimony, you described the Affordable Care Act as having lived through—and I will quote—a neverending ‘‘trench warfare’’ of a tax from just about the moment of its 

enactment. That really creates a strong image about what it is like 

behind the scenes for those who work to put this law into effect. 

There was and, frankly, still is a constant stream of criticism 

coming from the other side of the aisle, which is why I think it is 

important to clarify something for the record, if you can answer for 

me. 

Exactly how long was the ACA in effect before the first lawsuit 

was filed against it? 

Mr. WEINER. Seven minutes. 

Mr. CROWLEY. I am sorry. Could you repeat that again. 

Mr. WEINER. Seven minutes. 

Mr. CROWLEY. Seven minutes after the law was enacted a lawsuit was filed against the law? 

Mr. WEINER. Yes, sir. 

Mr. CROWLEY. Opponents of the law waited a mere 7 minutes 

before filing against it. That is just remarkable. That is about the 

politics. But there is another number, and that number is 19. That 

number is 19. That is how many hearings this Committee has had 

on the Affordable Care Act since its enactment. 

Let me put that number into context. If for every one of those 

hearings 1 million people got access to health insurance, it still 

would fall short of the 22 million Americans who got health coverage through the ACA. 


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Sadly, these hearings don’t have that kind of positive effect. It 

is not as a result of these hearings that 22 million people have 

healthcare coverage today. 

On the other hand, the Democrats on this Committee have asked 

the majority time and again to hold a hearing on a critical issue 

facing our country: Highway and infrastructure funding. 

And the result, not one. Not a single hearing. Not a markup this 

year on the funding our States and cities desperately need to maintain and improve roads, bridges, and transit systems. 

There always seems to be time for hearings to try to create falsehoods once again about the ACA and how it is somehow hurting 

job growth, even though 12 million American jobs have been added 

to the economy since the enactment of the ACA. But we have had 

not a single hearing this year on one of the biggest ways to create 

jobs in our country, providing a long-term infrastructure package. 

Instead, yesterday, just yesterday, the House was forced to kick 

the can down the road once again for just another 2 months, leaving our States and local transportation agencies in limbo, without 

any foresight, without any, really, ability to plan for the future, 

without any vision. 

And, sadly, I am not surprised. I love this Committee. I love this 

House and this institution. But it seems to me, under my Republican colleagues’ control, we do a lot more looking backward instead 

of looking forward. 

There seems to be a sentiment that it is better to score political 

points, get some press, and run campaign ads than it is to work 

together constructively to get things accomplished. 

For 5 years, opponents of the law have refused any opportunity 

to work constructively to make it better or to offer a substitute for 

what they have tried to repeal 56 times. When Federal agencies 

use the implementing authority they have that they have used for 

hundreds of laws over the years, including the Part D program that 

President Bush signed into law, these same critics raise up a cry. 

To all those critics of the law, I would say, maybe if you would 

stop trying to sue and repeal the law out of existence, you would 

be able to take a moment to work to improve the Act itself. All of 

us are ready. 

We are here with bills and ideas—bipartisan bills—to make the 

law work even better for all. Every time we go through one of these 

hearings, I keep wishing it is the last one and that we can now 

work on real policy ideas. I do hope this is the last, but I doubt 

that it will be. 

I really seriously question whether my colleagues on the other 

side of the aisle care about how this law is implemented, when, 

really, their only legislative attempts have been to repeal it 56 

times. 

That is all they have done. 

So, with that, Mr. Chairman, I will yield back the balance of my 

time. 

Chairman ROSKAM. Thank you, Mr. Crowley. 

The good news is—and, Mr. Weiner, this is a heads-up. We are 

going to be coming back to you to answer Ms. Turner’s point. Mr. 

Crowley didn’t reference that. 


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So this narrative that Congress has an inability to deal with anything short of repeal, the argument that is going to come back to 

you, Mr. Weiner, is: There have been 17 times that Congress has 

taken this up. Therefore, it is a false claim to say that Congress 

has no capacity to do that. 

So we are going to be in anticipation of your response, but right 

now we are going to go to Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

The President’s health law made significant cuts to the Medicare 

Advantage program. These cuts are scheduled to go into effect in 

2012. However, rather than allow these unpopular cuts to go into 

effect during an election year, whether it is 2012 or 2014, the Administration created a nationwide pilot program that basically 

undid the cuts. 

Ms. Turner, can you describe the purpose of a pilot program? 

Ms. TURNER. Pilot programs are designed primarily to test out 

an idea before we invest sometimes billions of dollars in Federal 

funds to make sure that that pilot program can work. 

Mr. SMITH. So usually they test it in, like, a local community 

or maybe a local city or a State? 

Ms. TURNER. Correct. 

Mr. SMITH. Not the entire Nation for a pilot program? 

Ms. TURNER. That is unusual. 

Mr. SMITH. So that is virtually what was done in this case. 

Do you know of any other situation that there has been a pilot 

program in any agency within the Federal Government that has 

been a pilot program for the entire Nation? 

Ms. TURNER. I think that it would really stretch the definition 

of the term, Congressman. 

Mr. SMITH. It doesn’t sound like a pilot program to me, by any 

means. 

Do you think this pilot was just a pretense to delay cuts to Medicare? 

Ms. TURNER. There is certainly evidence that they have used 

this fund when they began to realize the consequences that these 

cuts would have to Medicare Advantage plans that now about a 

third of seniors have voluntarily enrolled in. And they, perhaps because of pending elections, decided that they needed to replace 

those funds even though those funds were a big pay-for for the new 

subsidies in the health law. 

Mr. SMITH. It is a big deal. There are over 16 million seniors 

that are enrolled in Medicare Advantage—316,000 Missourians and 

40,000 people in my district. You know, in fact, 39,354 people in 

my district. So that is a lot of people that could have faced some 

kind of significant cuts prior to an election in 2012 or an election 

in 2014, whenever the Affordable Care Act clearly said that these 

cuts needed to take place. It sounds a little fishy to me. 

But Congress asked the Government Accountability Office to look 

at this program. GAO concluded that the design of the program 

probably would not produce meaningful results. GAO also raised 

questions about whether HHS had the legal authority to run the 

pilot in the first place, which causes great—whether it is a pilot or 

whatever you want to call it. At a cost of $8 billion, GAO noted, 


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‘‘This is the most expensive pilot in history,’’ which is very alarming and disturbing. 

Pilots are intended to demonstrate whether certain approaches 

work, not to allow agencies to circumvent the statute; is that correct? 

Ms. TURNER. That is correct, sir. 

Mr. SMITH. Hardworking taxpayers in our district and across 

Missouri deserve a government that is accountable to them and 

that follows the law consistently. When this Administration failed 

to meet the legal requirements for a demonstration program and 

blatantly disregarded the law, America’s seniors lost a lot. We can 

do better because our seniors deserve better. 

With that, Mr. Chairman, I yield back the rest of my time. 

Chairman ROSKAM. Thank you. 

Mr. Lewis. 

Mr. LEWIS. Thank you, Mr. Chairman. 

Mr. Chairman, before I ask a question, I want to yield to Mr. 

Crowley for 2 seconds. 

Mr. CROWLEY. Thank you, Mr. Chairman. 

I just want to welcome to today’s proceedings Liz MarkeeBehrends. She is participating in the Foster Youth Shadow Day, 

and I am her victim. She is following me for the day. So I just want 

to welcome her to the Committee. 

So thank you, Mr. Chairman. 

Chairman ROSKAM. Welcome. Glad you are here. 

Mr. Lewis. 

Mr. LEWIS. Mr. Weiner, does the ACA allow people to receive 

tax credit for insurance purchased on the Federal exchange? 

Mr. WEINER. Yes, it does. 

Mr. LEWIS. You heard Members; you heard the other witness. 

Do you want to take some time to say anything about what you 

have heard? 

Mr. WEINER. Yes. And let me say, Congressman Lewis, that it 

is an honor to be here and you are one of my personal heroes. 

I think, when we talk about the actions of the Administration 

raising the costs of insurance, it flies in the face of the evidence 

that the costs of insurance have been going down. And so I think 

that is one of the things we need to focus on. 

But focusing on the language of the statute that is at issue in 

King, when you read a statute, you don’t read the provision by 

itself. And to listen to the attacks in the Court and elsewhere with 

regard to the tax credits, you would think that the statute said, 

‘‘You shall not get a tax credit if you are in a State that has a Federal exchange.’’ It doesn’t say that. It never says that. 

And the portion of the statute that talks about how you calculate 

the amount, after it says that everybody gets the credit and then 

it talks about calculating the amount, it calculates the amount by 

reference to insurance bought on an exchange established by the 

State. 

And the argument is made that ‘‘established by the State’’ means 

established by the State. But the fact is that Congress defines its 

terms—this body can define ‘‘cat’’ to mean ‘‘dog’’ if it wants. But it 

defines ‘‘exchange,’’ and the way it defines ‘‘exchange,’’ the only 

way to read the statute that makes any sense is to say that the 


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Federal Government steps into the shoes of the State when the 

State doesn’t establish its own exchange. 

Mr. LEWIS. Well, thank you. 

Mr. Weiner, some of my Republican colleagues seem concerned 

about the implementation of the law. They focus on Treasury’s 

legal authority to delay the employer reporting requirement. Is 

there a Supreme Court precedent to support the agency’s discretionary enforcement requirement? 

Mr. WEINER. Yes. There is a major Supreme Court precedent. 

The leading one is a case called Heckler v. Chaney, and that relates 

to the enforcement discretion. 

Courts are sensitive to the administrative priorities. And, you 

know, Congress sets deadlines at times, and sometimes they can’t 

be met. Sometimes Congress gives the agency more than one priority, and the agency has to make choices with the budget that it 

has and the personnel that it has. 

The Court has said that it will defer to the agency’s determination on timing and that only when the action of the agency is so 

extreme that it amounts to an abdication of its responsibility to enforce the statute will the Court intervene. And that is the standard, 

and it is a standard against which this body has legislated. It is 

a longstanding standard. And so Congress, when it passes a law, 

knows that the Supreme Court has carved out that discretion for 

agencies in enforcing the statute. 

Mr. LEWIS. Let me just ask, is it correct or true that numerous 

Administrations have delayed implementation of certain legislative 

provisions? 

Mr. WEINER. Yes. 

Mr. LEWIS. Do any come to mind? 

Mr. WEINER. Well, Medicare Part D comes to mind, and the 

former HHS Secretary Leavitt said that the delay of the employer 

mandate was directly analogous. But there are other—there are 

many tax provisions, there are EPA provisions that have been delayed based on balance of priorities or on the state of the science 

or on any number of other grounds. 

Mr. LEWIS. Are you still a partner at Arnold & Porter? 

Mr. WEINER. Yes, I am. 

Mr. LEWIS. I know the firm, and I want to thank you for all 

your great work. And I want to thank your firm for being back 

there during another period, during the height of the movement, 

and for all you have done for civil rights and civil liberties. Thank 

you for being here. 

Mr. WEINER. Thank you. 

Chairman ROSKAM. Before going to Ms. Noem, let me just 

ask Ms. Papez, the—Mr. Weiner referenced the case, Heckler v. 

Chaney. You mention that in your written testimony and also in 

your oral testimony. You have cited it today as precedent for, you 

know, the Administration to move forward. 

Is that your view? Is there a different interpretation, or what do 

you think? 

Ms. PAPEZ. I think the opinion actually speaks for itself. I don’t 

think it stands for the proposition for which the agencies have cited 

it. The opinion says pointblank that what it is about is the execuVerDate Sep 11 2014 07:24 Feb 13, 2017 Jkt 022146 PO 00000 Frm 00095 Fmt 6633 Sfmt 6602 I:\WAYS\WAYSPS\22146\22146.XXX 22146

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tive branch’s power to make discretionary judgments concerning 

the allocation of enforcement resources. 

And some of the examples that have been given—we have articles that abound on this—is, you know, for example, if the Justice 

Department wants to ticket fewer jaywalkers so they can put more, 

you know, drug cases in jail, that is a fair exercise of enforcement 

discretion. 

Some of the examples in the ACA implementation go well beyond 

that. I think that the best one is probably the Treasury Department’s decision that the employer mandate—only 95 percent of employers have to participate from 2016 forward under the statute in 

the healthcare coverage. I mean, that really effects a permanent rewrite of the statute under the guise of transition relief. That is not 

executive enforcement discretion. That is a suspension or a rewrite 

of the statute as written. 

And that is the point about coming back to the Congress. I mean, 

if there is a problem with implementing that provision as written, 

the solution is to come back to the legislature, not to have the executive branch revisit it wholesale. 

Chairman ROSKAM. Thank you. 

Ms. Noem. 

Ms. NOEM. Well, Ms. Papez, I am going to stay with you because I want you to speak a little bit to that. And I also want you 

to talk about not only the cost to some of your clients that you have 

seen but also costs that you have seen them endure because of 

changes to the ACA over time that the Administration has made. 

Ms. PAPEZ. This is an important point Representative Kelly 

made, as well, obviously, that predictability and knowing the rules 

of the road are not only constitutional requirements, they are also 

critical to enabling the government to administer a law in a way 

that is functionable for the private sector. And, you know, this is 

a fundamental requirement that we see in the Fifth Amendment, 

in the Due Process Clause, where everyone is entitled to fair notice 

of how a law is going to be administered. 

And so I probably should have cited it in my written testimony; 

Richard Epstein at the University of Chicago issued an article 

about a year ago called ‘‘Government by Waiver’’ that kind of walks 

through more articulately I think than I will now the hazards of 

executive branch or agency discretion to grant waivers without fair 

notice or procedures so the private sector can understand how do 

they get relief from an Administration or an agency, what are the 

criteria for getting it, how should they structure their business activities to comply with the law, what kind of costs do they have to 

account for. 

And this affects real people. It affects jobs, it affects benefits, it 

affects how someone makes payroll every month. And so these kind 

of deviations that we talk about, to the Chairman’s point, are not 

theoretical. 

Ms. NOEM. Yeah. 

Ms. PAPEZ. You know, these limits on government acts are there 

for a reason, and they have very real-world consequences in the administration of a statute like this. 


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Ms. NOEM. It burdens on everyday people. And this Administration has done it not just in health care; they have done it in education and many other areas, as well. 

Ms. PAPEZ. Well, and I think that is the point, right, that this 

is not confined to health care, but some of the ACA administration 

issues illustrate how dangerous it is when, you know, for policy or 

other reasons—and I don’t purport to comment on those. The overarching point is, you know, an ends-justifies-the-means approach 

on any of these issues can create very dangerous precedents that 

have a ripple effect throughout the government, and they can come 

home to roost in other programs. 

I also have to say, I thought it was interesting that Representative Rangel mentioned going across the street to the Supreme 

Court. The Supreme Court in the arguments in the King case last 

month emphasized that, because the Constitution limits the Court’s 

authority to decide some of these issues, it can do its job to a point 

in examining whether a particular provision is implemented correctly. 

And then to Mr. Weiner’s point, it was the President’s representative in the Supreme Court who said, well, if you interpret ‘‘State’’ 

to mean ‘‘State’’—because this was not a case where this body defined ‘‘cat’’ means ‘‘dog’’ or actually defined, you know, ‘‘State’’ to 

mean ‘‘Federal Government.’’ You know, the President’s representative said, if you go with the literal interpretation of the statute, the 

statute will be broken, and all these subsidies can’t flow to people, 

and we won’t have affordable care, to which then some members 

of the Court said, well, then, the answer is bring it back to the 

Congress, which I understood to be the purpose of this hearing. 

Ms. NOEM. Yes, and I want to touch on that before I run out 

of time. Because one of the things that alarms me the most is what 

the Administration does as ways to fund portions of this bill when 

Congress has not appropriated funds that were laid out strictly in 

the statute. 

So can you briefly describe—because I want to follow it up with 

another question—the cost-sharing reduction program and the 

funding issues that we have had? 

Ms. PAPEZ. All right. So the statute provides that the Federal 

Government can make payments to insurance companies to make 

them whole—— 

Ms. NOEM. To make up the cost difference. 

Ms. PAPEZ. Right, to make them whole for money the insurance 

companies have to give to insurance on premium refunds and the 

like. And the question is, where does the Federal Government get 

this money? 

The statute does not actually provide a permanent appropriation 

for those subsidies. And the Administration, actually, in the fiscal 

2014 budget, asked this body to appropriate annual money for that. 

Congress did not do so. 

The executive branch then said, as a matter of administrative efficiency, they were going to take the funds from a permanent appropriation under the statute for tax credits, but do not include 

these subsidies. 

Ms. NOEM. Did they have the authority to do that—— 

Ms. PAPEZ. Well, that is exactly the question. 


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Ms. NOEM [continuing]. In your understanding? 

Ms. PAPEZ. Right. The statute does not appear to give them the 

authority. And the Constitution says, if you don’t—you don’t have 

the authority as executive; Congress has the only power to appropriate money for public programs. 

Ms. NOEM. And that is the authority that the Administration 

has, is to act under the discretion of what Congress directs them 

to do, correct? 

I mean, I am elected by the people of South Dakota to come here 

to represent them, to pass laws, to decide what is taxed, what 

should not be taxed, how those funds should be spent. 

When an Administration takes action like this and randomly 

pulls out of other funds to fund their priorities when Congress has 

not specifically given them the funds to do so, is that a dangerous 

precedent for us to be setting in this country? 

Ms. PAPEZ. Well, certainly, because it goes to the fundamental 

issue of where do appropriations have to originate with the Congress. And then it goes to the fundamental point that the executive 

has discretion to administer funds within an appropriated box. It 

does not have the authority to go outside that box and pull funds 

in to administer appropriations. 

Ms. NOEM. And it undermines our authority as Members of 

Congress, as well, to direct where those funds should flow. 

Ms. PAPEZ. Absolutely. And it also undermines the constitutional authority the people count upon to have the Congress, as a 

body, decide where the money is going to go. 

Ms. NOEM. What is interesting to me is that in fiscal year 2015 

the Administration didn’t even request the funds. You know, in 

2014 they requested the funds; we denied those funds. But in 2015 

they didn’t even make the request. They just made the decision 

among themselves to go to this other fund and get the revenue that 

they needed. 

Ms. PAPEZ. That is correct. And I think, to me, that points out 

another reason why—you know, that issue is—you know, it may 

not be an issue that goes to the courts. If it does, they can resolve 

it. If it doesn’t and it isn’t resolved in the courts, that is an issue 

that should come back to this body, in terms of perhaps legislative 

action or at least oversight action, to say, where is this happening? 

And this Subcommittee has done that. 

Ms. NOEM. To put forward consequences. 

Thank you. I appreciate your testimony. 

I yield back. 

Chairman ROSKAM. I would like to recognize our newest Member of the Subcommittee, Mr. Renacci. 

Mr. RENACCI. Thank you, Mr. Chairman. 

I want to thank the witnesses. I want to welcome you all, especially my fellow Buckeye, Mr. Adler. 

I was going to stay away from the Supreme Court issue until Mr. 

Weiner brought it up and indicated that, you know, the exchanges, 

if the State didn’t step in, that somehow this law said that the Federal Government could come in and step in. And it is amazing; I 

am looking at the statute here. It reads, ‘‘Where enrolled in 

through an exchange established by the State’’—that seems pretty 

clear to me. 


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I was a businessman for 30 years before I came here. I was in 

the healthcare sector. I had to deal with a number of regulations. 

If I could not interpret ‘‘exchange established by the State,’’ being 

that simple, I never knew, as a businessowner, I could go and just 

use discretion to move all around and make sure that I was able 

to do what I wanted to do versus what the law said. 

Mr. Adler, it seems pretty clear, those words, ‘‘exchange established by the State.’’ Do you agree? 

Mr. ADLER. I certainly think they are clear. 

Mr. RENACCI. I would think so. 

Recently, Andy Grewal, a tax law professor at the University of 

Iowa, discovered other examples where the Administration has expanded the eligibility for these tax credits beyond the language of 

the statute. 

Mr. Adler, can you discuss some of those? 

Mr. ADLER. Yes, I can discuss them briefly. And I believe Professor Grewal is going to submit a written statement summarizing 

his research and a forthcoming article he has. 

But he identified instances in which the IRS, in issuing regulations to implement section 36B of the Internal Revenue Code, expanded tax-credit eligibility both to individuals that fall outside the 

income requirements that are provided for in the statute as well 

as to provide tax-credit eligibility for some aliens that are unlawfully present in the country, contrary to the text of the statute. 

And he further pointed out that, because of the way the statute 

is written and because tax-credit eligibility is the trigger for employer mandate penalties, the IRS’ unilateral expansion of taxcredit eligibility carries with it an increase in the exposure of employers to potential penalties. 

And he has written these up on the website of the Yale Journal 

of Regulation and has a forthcoming article that details how the 

IRS’ regulations are expressly contrary to the plain text of the statute and that the IRS really offered no legal justification for those 

differences. 

Mr. RENACCI. So, again, this hearing, as I always say, is not 

about the healthcare law; it is about the President’s discretion. And 

there are some issues that are not in front of the Supreme Court, 

and that is one of the reasons we are having this hearing. 

Mr. Weiner again used the word ‘‘discretion’’ multiple times, 

which really frustrates me, as someone who had to live within the 

rules as a businessman. How much discretion does this statute provide to the Treasury to set eligibility standards? 

Mr. Adler, do you want to answer that? 

Mr. ADLER. Well—— 

Mr. RENACCI. I already know what Mr. Weiner would say. He 

would say we have all kinds of discretion, the executive branch has 

discretion. Mr. Adler, you tell me what you believe. 

Mr. ADLER. Well, I think there are certain aspects of eligibility 

that are very clear. So, for example, where the statute says that 

you must fall between 100 percent and 400 percent of the poverty 

line, 100 percent and 400 percent are pretty clear, right? Those involve numerical calculations, and you are either within that range 

or you are not. 


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There certainly are areas where the Administration has discretion in terms of how aggressively to enforce those provisions, 

whether to seek penalties, whether it wants to spend more time 

chasing after people that earn above those thresholds as opposed 

to below those thresholds. Those are the sorts of things that are 

typically the subject of executive discretion. 

Trying to alter the thresholds, as the IRS has done, is not the 

sort of thing that has traditionally been recognized as permissible 

executive discretion. 

Mr. RENACCI. Thank you. 

And, lastly, I want to change subjects. Professor Adler, the State 

of Ohio, along with several public universities, has sued the Administration over being assessed a tax for the reinsurance program. 

Can you explain why this is a problem and how it implicates the 

10th Amendment? 

Mr. ADLER. Sure. 

So Attorney General Mike DeWine has filed this suit, and the 

basic claim is that insurance plans provided by State and local government entities are not covered by the plain text of the statute as 

entities that are subject to these taxes or payments, as some refer 

to them. 

And it is traditional canon of construction of Federal statutes 

that they should not be read to impinge upon the traditional functions of State and local governments unless Congress has made 

that absolutely clear. And so the first argument that the State of 

Ohio is making is that, because the statute wasn’t expressly clear 

that these fees or taxes should be imposed on State and local governments, it is impermissible for the Federal Government to seek 

to impose them. 

And then a secondary claim is that, if the statute were to be read 

that way, whether or not it would raise 10th Amendment questions. 

In my own work, I have primarily looked at the first issue, and 

I think the State of Ohio raises a very serious claim. There is, certainly, a large number of cases standing for the principle that you 

don’t read a statute to infringe upon State prerogative or State 

functions unnecessarily. And it does not appear that there is 

clear—at least, I have not seen clear statutory language that would 

seem to authorize the imposition of these assessments on State and 

local governments. 

And I believe that that case is currently pending in district court, 

and I believe motions for summary judgment and motions to dismiss have been filed. 

Mr. RENACCI. So another possible overreach because of discretion. 

Mr. ADLER. Sure. Sure. 

And I would just say, just as we have seen litigation for decades 

under statutes like the 1990 Clean Air Act—which, you know, 

there was just a case in the D.C. Circuit a couple weeks ago on 

that, and there are more pending—there will be litigation under 

this statute for decades to come filed by States, by companies, by 

individuals. That is the way complex litigation is, especially when 

you are dealing with something as complex and as important as 

health care. 


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Mr. RENACCI. Thank you. 

I yield back. 

Chairman ROSKAM. Mr. Meehan. 

Mr. MEEHAN. Thank you, Mr. Chairman. 

There are so many places to jump in on this conversation. 

Ms. Turner, we had discussed before, I think you commented a 

little bit, one of the questions was about the quality bonus payment 

demonstration project. And I am trying to get the boundaries of 

this discretion that apparently the President believes he has. 

And this was a demonstration program in which some $8.3 billion was tied to a demonstration program which my colleague, Mr. 

Holding, identified as being one in which the entire United States 

was covered. So its scope, in and of itself, is unprecedented for a 

demonstration project; is that not accurate? 

Ms. TURNER. That is correct, Congressman. 

Mr. MEEHAN. And we also have budget neutrality requirements. Isn’t that an aspect of OMB approval for these kinds of 

demonstration projects, budget neutrality? 

Ms. TURNER. They certainly would not be allowed to spend 

money that is not appropriated by Congress legally. 

Mr. MEEHAN. So what is the solution? Mr. Weiner seems to object to the idea that there is litigation associated with this. What 

is the solution when you see an interpretation—I was a former 

prosecutor, and I knew what prosecutorial discretion was, when we 

had a broad spectrum of rules before us, but we were limited in the 

resources to be able to use those rules, so we made the best use 

of the existing resources to interpret the existing laws. 

This is a different situation, is it not, in which what we have is 

a disregard for the existing law and, under the guise of discretion, 

reinterpreting that law in a way that you want to see an outcome 

and, in fact, reinterpreting it in a way that we have established 

contravenes existing requirements such as budget neutrality. 

Ms. TURNER. That has certainly been one of the great frustrations with this law. First of all, it is so complex that it is extraordinarily difficult to track all of the spending and all of the changes 

that are being made to this law. 

But when you look at the authority of Congress, when the President takes an oath of office to faithfully execute the laws of the 

United States, that is part of the trust in the Administration, that 

they are not going to push the envelope so much, as they have with 

this law, that the Constitution doesn’t really provide, other than 

through the courts, a way for you to have a recourse. 

And, yes, as Mr. Rangel mentioned, the courts are a vehicle, but 

you cannot litigate hundreds of different challenges to this law. 

Mr. MEEHAN. I think that point is so—Ms. Papez, you served 

as counsel in an agency in which you were responsible for interpreting the boundaries of what could and could not be done and, 

I am sure, many times gave advice that this was not doable. 

And it has been said that, you know, the Court is an opportunity 

to resolve these issues. How realistic is it that the Supreme Court 

is going to be able to play the role of resolving these kinds of questions if it is not done—or how realistic is the Supreme Court going 

to be? 


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Ms. PAPEZ. Well, I think some of the Justices actually spoke to 

that at the hearing in March. I mean, they made clear that the 

Constitution limits their authority to resolve the particular provision or controversy in front of them. 

And what the argument seemed to show, including arguments by 

the Administration and the Solicitor General, is that if the courts 

rule on the particular provision in front of them—in the King case, 

it is, you know, what does it mean to say an exchange established 

by the State; can that include the federally created exchanges? 

That may just open the door to a host of other questions that will 

then have to go back to the political branches. And I think members of the Court recognize they can’t issue an advisory opinion addressing those issues. 

So the point is it has to maybe come back to the Congress. At 

a minimum, it should be subject to legislative oversight, like the 

hearing today, to say, what would we do if the Supreme Court were 

to conclude that one provision is invalid? And that means the law 

doesn’t work anymore? The Court, I think, has made clear on numerous occasions that is not its job to fix. That has to go back to 

the Congress. 

Mr. MEEHAN. Mr. Weiner, what is the solution? How do you address this? What is our capacity to rein in when an Administration 

acts in direct contravention not only of the bounds of discretion but 

within the statute or the agency requirements itself that they meet 

certain budgetary requirements to be able to exercise that discretion but they act way beyond the scope of it? What is the solution? 

Mr. WEINER. Well, the Congressional Research Service did a 

study on administrative discretion, and they talked about the hammers that the Congress has. Congress can pass legislation that 

says, if you miss a deadline, the following things happen. And with 

great specificity, Congress can, in fact, deal with situations where 

it does not agree with the actions taken by the executive branch. 

Mr. MEEHAN. Such as the numerous occasions where laws have 

been passed in the House of Representatives and then disregarded 

because the President says, ‘‘If you do pass that, I will veto it?’’ 

What is the solution when the President says, ‘‘I have chosen to do 

this because I am saying it is my discretion, and you, Congress, if 

you do it, I will veto it?’’ 

Mr. WEINER. Well, I think that is a failure when—if legislation 

is needed—and I am not sure I agree that it is—but if legislation 

is needed and the political process can’t provide it, then I think 

that is a failure of the political process. 

But it doesn’t justify—I don’t think it means we should go to litigation because I think we should try to resolve things—— 

Mr. MEEHAN. We have seen that litigation cannot be a solution 

because it is incapable of accommodating the vast number of challenges. 

So the question is: Do we just say, ‘‘No big deal’’ and walk away 

and say, ‘‘Never mind?’’ 

Mr. WEINER. No. I think you keep pushing the political process 

and try to get an answer there. 

Mr. MEEHAN. Which is why we are having these hearings, isn’t 

it? And I think that answers one of the questions of my friend, Mr. 

Crowley. Thank you. 


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Chairman ROSKAM. Mrs. Black. 

Mrs. BLACK. Thank you, Mr. Chairman. I appreciate your allowing me to sit on this Committee and ask questions. 

I do want to take a point of personal privilege. This is the National Foster Care shadowing week, and I do have a gentleman 

here with me from my district, Zach Grumman. He is from Jackson 

County, and he attends Tennessee Tech in the district. He is an 

English major. It is great to have him here with me. 

Chairman ROSKAM. Welcome. 

Mrs. BLACK. I want to go back to the publication by Professor 

Andy Grewal of the University of Iowa School of Law and the blog 

posts. And I would like to ask unanimous consent to submit this 

for the record. 

Chairman ROSKAM. Without objection. 

[The submission of The Honorable Diane Black follows:] 


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Mrs. BLACK. And as has already been said, the post details, 

those final regulations from the IRS on the eligibility for premium 

tax credits, we see the regulations give credits to taxpayers who 

are automatically enrolled in employer-sponsored minimum essential coverage even though the IRS, the IRS, has acknowledged that 

the individual is not eligible for the tax credits. It is unbelievable 

to me that that could be taking place. 

Congress has explicitly denied these premium tax credits to individuals who are receiving health benefits from their employers. I 

am extremely concerned that this policy will lead to employer penalties. I have actually had employers call me and tell me they are 

concerned about this personally, about what this is going to mean 

to them. 

They are trying to abide by the law. They are trying to meet all 

the regulations. Obviously, the regulations were late coming out. 

They were supposed to start with reporting mechanisms in January. They didn’t get the final regulations until February. It is costly 

to them and so on. 

Can any of you address the impact that you believe this will directly have on employers? 

Ms. Turner, why don’t I start with you. 

Ms. TURNER. Employers have just, as I mentioned before, been 

run through the wringer in trying to comply with this law, and this 

is a relatively obscure provision that Professor Grewal has found, 

among several others, when he has looked at the statutory language and the significant conflict. 

But employers are doing the right thing here in trying to provide 

coverage to their employees. They are following the law often with 

automatic enrollment. And if that happens and this person still 

goes to the exchange for coverage and if it is allowed because of 

this breach of the Federal rules, it puts the employer in an impossible position. 

Even doing their best to comply with the law is not possible 

because the law is in conflict with itself and really shows the extraordinary difficulty of changing a law as you go along and the repercussions and the chain effect that that requires. 

Mrs. BLACK. It is a huge concern. And it is apparent that this 

Administration does not have the capability of accurately verifying 

eligibility for these subsidies, and they have had repeated illegal 

workarounds on the law that have exacerbated this situation. 

For instance, in the 2015 plan, the CMS implemented a policy 

that I believe is outside the bounds of the law, once again, where 

they automatically re-enrolled individuals into the exchange coverage even if they did not proactively select a new plan. 

And in that they based their subsidies on income information 

that was out of date. They knew it was out of date. It was based 

on 2014 enrollment applications. And according to their own Office 

of Assistant Secretary for Planning and Analysis, nearly 2 million 

people were enrolled in coverage via this method that is going to 

potentially set up for not only a waste in taxpayer dollars, but also 

the issue of what it will do for the employers. 

And, Ms. Papez, would you please address what you would say 

is the legality of what is happening with this automatic enrollment 

using numbers that are not verified. Is it legal? Do you believe that 


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this is something that would, if it were in a court of law, be seen 

as illegal? 

Ms. PAPEZ. Well, I think the question goes to a point you raised, 

which is you would start with, you know, does the statute speak 

to this issue. And, to your point, if the statute speaks clearly to an 

issue, there is very little administrative discretion to depart from 

that. So I think that is the first point. 

I think the second point is one we have discussed a little bit, 

which is, to the extent that the agency has discretion on implementation, there has to be an—and there are other statutes like the 

Administrative Procedures Act that speaks to this—there has to be 

a rigorous process for, you know, documenting, announcing, and 

justifying the manner in which particular programs are implemented, the way particular decisions are made. 

And, you know, there are a number of APA cases, for example, 

in the Federal courts in D.C. here that take the position that, you 

know, if an agency action that affects real rights and real issues 

is based upon, you know, numbers or statistics or findings that are 

not actually verified and do not have an appropriate factual basis 

in the administrative record, then they are void as a matter of law 

and the agency has to go back to the drawing board. 

Mrs. BLACK. Thank you. 

And, Mr. Chairman, I want to thank you for having this hearing 

today because it is our responsibility to oversee the administrative 

policies and the lack of following the law. And I applaud you for 

allowing us to bring this forward. 

Chairman ROSKAM. Thank you. 

Ms. Turner, I am sensitive to your time. So I know you have a 

flight to catch. If you need to catch that flight and walk off quietly, 

we will avoid eye contact and let you go. And we are gratified in 

advance for your time and attention today. So we are all supersensitive to that dynamic. 

Ms. TURNER. Thank you, sir. 

Chairman ROSKAM. So, Mr. Weiner, the phone lines have lit up. 

Everybody’s interested in your response. 

So earlier Ms. Turner made this assertion, and she said, ‘‘Look, 

you know, Congress has dealt with this 17 times.’’ And if you look 

at her list that was prepared by the Galen Institute, you know, 

they are all enumerated. They have to do with military benefits, 

VA benefits, drug price clarification, doc fix tax, extending the 

adoption credit, TRICARE for adult children. It goes on and on and 

on. 

And what is interesting is, you know, she lists them chronologically. So, at first glance, you can say, ‘‘Well, look. It was with 

the old majority, and the old majority came in and did a lot of 

cleanup.’’ 

But the story gets more interesting when you say, ‘‘Oh. This is 

after there was a new majority.’’ In fact, a majority of these took 

place after there was a Republican majority. 

So, in light of that, would you want to revisit and reconsider your 

characterization of this institution being dysfunctional and incapable of dealing with the Affordable Care Act? 


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And, if you choose not to re-characterize it, how would you characterize those legislative changes that went through the House, the 

Senate, and were signed into law by President Obama? 

Mr. WEINER. Well, thank you for the opportunity to discuss this 

further. 

I don’t retreat from the statement. I think that, when you look 

at the Affordable Care Act and—not just the Affordable Care Act, 

but that is what we are focusing on—the question is whether Congress has been able and expected to be able to address the important issues. 

Many of the issues on this list are important, but they are not 

core to the issues that are at stake, the principal issues that are 

dividing the parties, the legislature—— 

Chairman ROSKAM. Okay. So just in the interest of time, you 

are dismissive of the past accomplishments. Your argument is that 

they are de minimis. My argument is that they are more significant than that. Is that fair enough? 

Mr. WEINER. Well, I think it goes beyond that. The question is 

what is it that hasn’t been done. The King case, that is the kind 

of issue that in past years would have been resolved with a technical amendment. It should never have gotten to this stage. 

The employer mandate that Ms. Turner cited, yes, there was a 

bill passed. It had a poison pill in it, in my view, and it didn’t get 

past the Senate. That doesn’t prove that we are able to deal at this 

stage. 

I think we will reach a point where we are able to deal with it. 

My only argument is that I am not worried about the precedence 

because I think we are going to be able to come together at some 

point and do a better job than—— 

Chairman ROSKAM. So go back to my opening statement. And 

I appreciate what you are saying. But go back to my opening statement. 

And that is I put a provocative statement out there, and the 

provocation was: Do the votes of the American public matter? Do 

they matter at all? 

So the ACA was enacted. The majority changed. Political scientists can make their decisions about what the reasons were for 

the change in the majority, but I think most folks say that the Affordable Care Act was largely the discussion point in the 2010 election. 

The majority changes. And so you have a new, new, Congress 

that is reflecting who? The American public, who is what this is all 

about. 

And so you see this conundrum then and this sort of—I would 

argue that you are making a false choice and you are saying, well, 

if Congress chooses not to deal with the things that we say—that 

we deem are important, that is the architects of the statute, then 

somehow Congress is dysfunctional. 

So your point is—I understand your point. You understand my 

point. Let’s move on. 

So on page 4 of your testimony—it is interesting. You have a 

number of footnotes throughout. You have 17 footnotes in your testimony. On page 4 of your testimony you make an assertion, and 


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I will let you catch up. I will read it to you while you are catching 

up. 

You say, ‘‘The postponement, in fact, was well within the historical bounds of administrative discretion as a transitional phase-in 

of a new requirement.’’ 

Now, there is no footnote there. There is an assertion there. 

What is the proof of that statement? 

Mr. WEINER. Well, I think the proof of the statement is it goes 

on and talks about, for example, the statement of the former HHS 

Secretary in the Bush Administration who wrote an article after 

the employer mandate was postponed and said that he thought it 

was wise and that he thought it was consistent with the kinds of 

things that were done with Medicare Part D. 

Chairman ROSKAM. Okay. But that is a different argument, 

isn’t it, than the one that Professor Adler was making? 

And, Professor Adler, your argument is this is different in terms 

of breadth and scope, and you made this point about taxes. So give 

us a little more color commentary, if you would, on this tax question and these postponement questions. 

And answer this: If there is a future Administration that says, 

for example, ‘‘We don’t think that the international tax regime is 

working for our country. We think that it creates a disadvantage 

for American companies to be taxed on their worldwide operations, 

and we are choosing not to assert or collect or’’—pick your verb— 

‘‘but we are not going to go after and collect that tax,’’ is that possible under this line of thinking? I would think that it is. 

Mr. ADLER. Well, I think it is certainly concerning. In my testimony, I quote my friend Nicholas Bagley at the University of 

Michigan, who I disagree with quite strongly on a wide number of 

issues, including King v. Burwell, but—— 

Chairman ROSKAM. So just for the point, this professor that you 

are citing is a proponent of the ACA. Is that right? 

Mr. ADLER. He is a proponent of the ACA. He and I have practically gone around the country debating King v. Burwell. But he 

has written an article identifying, I think, five instances, including 

the employer mandate delays, where he does not believe—and I 

certainly don’t believe—the delays can be justified under traditional administrative discretion. 

And just to put this in a context to make that clear, if you think 

about the ways in which Congress can force action or force a 

change in the law, one of the traditional things Congress does is 

to write a law that says that private parties are subject to certain 

legal obligations as of a date certain. 

In environmental law, this happens all the time. An emitter 

must control emissions by X date. That is separate and apart from 

what the agency or the executive branch might do to enforce that 

obligation. 

So here, with the employer mandate, the statute says that this 

obligation and what the Administration claims is a tax liability is 

imposed upon private entities as of a date certain. The Administration certainly has transition authority to say, ‘‘It might be hard to 

comply with this at first; so, we will give you a little extra time before you send us the check’’ or, ‘‘We are not going to seek penalties 

because it is going to take a while to get the reporting requireVerDate Sep 11 2014 07:24 Feb 13, 2017 Jkt 022146 PO 00000 Frm 00110 Fmt 6633 Sfmt 6602 I:\WAYS\WAYSPS\22146\22146.XXX 22146

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ments in place.’’ And certainly there are lots of examples of that 

sort of transition relief. 

What the Administration did here that is different is they didn’t 

merely say, ‘‘We are going to give you more time. We are not going 

to seek penalties.’’ They said, ‘‘The tax liability that is written into 

the law that is directly imposed on private parties’’—so this isn’t 

a delegation to the agency, saying, ‘‘Agency go enforce it.’’ This is 

directly imposed by Congress on private parties—the IRS said, ‘‘We 

are going to waive that entirely for a calendar year.’’ It then said, 

‘‘We are going to make up new categories and waive it selectively 

for some as opposed to others.’’ 

And that is the sort of thing that none of the precedents that the 

Treasury Department identified—— 

Chairman ROSKAM. That is new ground. That is ground upon 

which a future Administration could do the very thing that I just 

described. 

Mr. ADLER. It is certainly something that concerns me. And I 

should just note for the record, you know, we have seen things I 

don’t think are quite as egregious, but are of this character in the 

past. And I have certainly been critical of them. 

In the last Presidential election, as a candidate, Governor Romney made some claims about plans to waive certain aspects of this 

law, and I, among others, said, ‘‘Hey, look. That might be a good 

idea, but the President can’t do that. And it will be important, 

whomever the next President is, that they not be allowed to build 

upon this precedent to waive statutory obligations that are imposed 

directly upon private parties because that is simply not the sort of 

authority that the executive branch has unless Congress confers it 

upon the executive branch.’’ 

Chairman ROSKAM. So, Ms. Papez, you were talking a bit about 

the nature of the litigation and the lack of capacity of the court to 

bring certain remedies. 

So, for a layman, that is sort of a red light-green light game, 

right, where the court can say, ‘‘No, you can’t do this’’ and, ‘‘Yes, 

you can do that?’’ 

So can you describe some of those natural limitations from a litigation point of view and how important it is that those sorts of decisions are made here in Congress as opposed to somewhere else? 

Ms. PAPEZ. Sure. You know, the limit comes from the constitution itself. Article III says the courts can only resolve what are 

called justiciable cases in controversy. So there has to be a specific 

legal question presented that has a real effect on the parties in 

front of the court. 

Chairman ROSKAM. Right. It is not a hypothetical and so forth. 

Ms. PAPEZ. No. 

Chairman ROSKAM. There has to be a matter in controversy. 

Ms. PAPEZ. Right. A matter in controversy between the parties 

who are in front of the court. And Article III says the court can resolve that controversy. 

Now, what we heard in the King case, including from the Administration’s representative, the Solicitor General, is that, if the court 

resolves the controversy presented in that lawsuit, which is, ‘‘How 

do you interpret ‘established by a State?’ ’’—that is the phrase at 

issue—that, if the court interprets that the way it appears to be 


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written, which means ‘‘State’’ is a State, not a federally created exchange, that there are going to be all these consequences to the 

law. 

And, to your point, that is exactly where the Constitution contemplates that the courts stop and Congress steps in. And several 

justices made this point at the argument. They said, ‘‘Look. Our 

ability to indulge that sort of argument, whether you are right or 

whether it is good policy or whether there are practical reasons not 

to interpret it this way because it will break some other portion of 

the statute, those are policy arguments. We are not speaking to 

whether they are right or wrong. We are saying the court can’t do 

that. The court can’t go that far.’’ 

And so that is where the issue would have to come back to the 

Congress. And the reason it has to come back to the Congress is 

because, where you are dealing with the appropriation of funds for 

Federal programs and when you are dealing with the architecture 

of a statute that originated in this body, there is a limit in the Constitution as to how much the executive branch can do to fix or 

change or adjust that in response to new circumstances. It has to 

come back to this body. 

Chairman ROSKAM. So I couldn’t have done it better myself. 

But Mr. Rangel at the beginning of the hearing said, ‘‘Look, what 

is this all about? And why are we here?’’ And he asked a question 

that I think is a fair question. And that is, ‘‘With so many things 

going on in our country and so many things going on in the Congress, is this worthy of our time today?’’ 

And I would argue that this discussion and the level and the 

breadth and the depth of this discussion is worthy of our time. 

And for each of the witnesses, you have been forthright and you 

have focused in not on the things that we disagree about, that is, 

the merits of the Affordable Care Act, which are obviously a wide 

range of opinions on this Committee, but how we get in and around 

sort of this core issue. 

So, Mr. Weiner, you have demonstrated, you know, a higher tolerance for executive discretion than I would, obviously, or than the 

other witnesses have, but you can see how this question really does 

bring us together. Because it is the ACA today. It can be international tax tomorrow. It can be an environmental question the 

next day. So when Mr. Rangel said this is about Presidents past 

and future, it absolutely is. 

And so, you know, in closing, the point I want to make is that 

we have an obligation as a Committee, based on the House rules, 

to do the oversight work that I described in my opening statement. 

We also have an obligation, at least I feel one, to fill in the void 

of silence. Because I would argue that silence is assent. Silence creates precedent. Silence creates license over a period of time. 

And so what we are doing today is we are putting not just this 

Administration, but future Administrations, on notice that Congress has a high expectation, that Congress will do the law writing, 

and we have an expectation that the executive branch will execute 

those laws. 

And I want to thank all of my Members today on both sides of 

the aisle. You have been very generous, you experts, with your 

time and your attention. 


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And, with that, the Committee—— 

Mr. RANGEL. Mr. Chairman. 

Chairman ROSKAM. Yes, sir. 

Mr. RANGEL. I just want to thank you for your generous explanation as to why we are here and to join with you in any expansion 

of legislative oversight to end abuse by any executive branch of 

government, regardless of who the President is. 

And, also, I want to thank you for not going into the merits as 

to whether or not every American is entitled to access to health 

care or preconditions or whether or not to have the extensions. 

And it is really pleasant to know that the things that I have a 

passion about were not objected to, but the conduct of the executive 

branch should always be a thing that the Congress should protect 

with its constitutional authority. 

And so, as an American, I feel good walking away from this hearing knowing that, if this is a test as to what is constitutional, let 

me join in it, no matter which side I am on. 

Because if the President was overzealous in providing health 

care to millions of Americans, he should learn by doing that as long 

as we succeed in doing it. 

Chairman ROSKAM. We will leave it there. Thank you all. 

The Committee is adjourned. 

[Whereupon, at 11:58 a.m., the Subcommittee was adjourned.] 

[Submissions for the Record follow:] 


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dkrause on DSKHT7XVN1PROD with LOCATORS22146A.094
137 


dkrause on DSKHT7XVN1PROD with LOCATORS22146A.095
138 


dkrause on DSKHT7XVN1PROD with LOCATORS22146A.096
139 


dkrause on DSKHT7XVN1PROD with LOCATORS22146A.097
140 


dkrause on DSKHT7XVN1PROD with LOCATORS22146A.098
141 

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dkrause on DSKHT7XVN1PROD with LOCATORS22146A.099