Repealing Obamacare Is Harder Than It Looks



Since the Affordable Care Act passed in 2010, House Republicans have taken dozens of votes to repeal the federal health law. For the most part, these votes have been fairly straightforward—symbolic statements of the Republican party's intent to repeal the entire law, full stop. Now that the GOP controls a majority in the Senate as well, plans are in the works for yet another repeal vote, one that, finally, won't be stopped cold by Senate Democrats. But this time around, it won't be so simple.

As a report in Politico notes, the complexity stems from the fact that the Republican Senate will have to use the reconciliation process, which short circuits the Senate's effective requirement that bills pass with 60 votes, and allows for passage with a simple majority.

But there are limits to what reconciliation can accomplish: Namely, the process only allows for the passage of provisions with a direct effect on the budget. Exactly what which provisions are up for grabs is up to the Senate parliamentarian, who doesn't tend to make decisions public without specific legislation. That alone adds a major element of uncertainty to the process, because the Parliamentarian essentially serves as a judge of what's allowable under Senate rules.

What it probably means, though, is that various regulatory provisions—like, for example, Obamacare's rules about selling insurance to individuals with preexisting conditions or requirements that insurers spend a certain amount of premium revenue on medical expenses—won't be on the chopping block. Republicans might be able to repeal some of Obamacare, but probably not all of it.

They might attempt to take out the entire law anyway, however, by making lawyerly arguments to the parliamentarian or perhaps trying to avoid separating out the budgetary provisions altogether. As Politico reports:

A senior GOP aide in the Senate told POLITICO they are considering arguing to the parliamentarian that such provisions actually do hurt the deficit and should be repealable. One potential case they'll make: These requirements drive up the cost of premiums, which are covered by federal subsidies, so they may increase the cost to the Treasury.

Some conservatives and staff in both chambers, like House Freedom Caucus Chairman Jim Jordan (R-Ohio), are urging the chambers to do a straight one- or two-sentence repeal of everything. They argue that the parliamentarian has to look only at the words in front of her during reconciliation and should not be able to force lawmakers to break out the provisions on their own.

These sorts of aggressive appeals—or other more creative tricks—might be worth trying, but they don't seem particularly likely to work. The parliamentarian is not likely to allow Republicans to essentially circumvent the parliamentarian's authority.

And even after all this is sorted out, there's still President Obama's veto pen. President Obama has made it quite clear that he won't agree to repeal any of the law's core provisions.

A Supreme Court ruling against the administration in the King case later this month, which would wipe out Obamacare's private health insurance subsidies in the majority of states, would probably give congressional Republicans some leverage (and also create some additional reconciliation-related complications for Republicans if they want to extend the subsidies at all). But it's not at all clear how much leverage, in part because it's not at all clear what sort of political dynamic would emerge following a ruling against the administration.

So Republicans trying to make headway against Obamacare have to contend with at least three types of highly interconnected uncertainty: what Senate rules—and the parliamentarian in charge of enforcing them—will allow to pass with a majority vote, what the Supreme Court will rule on King, and what sort of political situation emerges following the High Court's decision.

Adding to all of this is that, even after all these years, it seems evident that a lot of Republicans simply haven't thought through the details, in part because they haven't had to. There are definitely some Republican legislators who have worked through the details, but the lack of cohesion, or even a robust debate, when it comes to an Obamacare replacement strongly suggests it's still a minority. For the last five years or so, it's been enough to simply say that Obamacare should be repealed and hold ultimately meaningless votes to do so. That approach may have some political value, but it's not much of a legislative or policy strategy; Republicans hoping to make inroads on health policy need both right now.