1

This follows from a previous question.

As I understand it (any of the following assumptions may be wrong and are part of my question):

Obamacare consists of two federal statutes:

  1. The Patient Protection and Affordable Care Act (PPACA)
  2. Health Care and Education Reconciliation Act of 2010

The first was passed with a filibuster proof 60 votes in the senate. The second with 56 votes in the senate, but getting past the filibuster as a reconciliation bill.

Only spending related items can be included in a reconciliation act, so there is a lot that cannot be changed with reconciliation.

So does this mean that the most that could be done to repeal the ACA (without 60 votes in the senate) would be to cripple the current law, thereby creating a looming disaster?

4

So does this mean that the most that could be done to repeal the ACA (without 60 votes in the senate) would be to cripple the current law, thereby creating a looming disaster?

In short, yes. I've explained why below.


As noted in the question body (though the title is partially incorrect), the main part of Obamacare (PPACA) was passed with 60 votes. Reconciliation was only used as a fixup to address some spending/revenue matters (e.g. more generous subsidies, repealing the Cornhusker Kickback, and making the mandate cheaper (i.e. less effective)).

Many of the law's most well-known provisions (no discrimination against pre-existing conditions, essential health benefits, staying on your parents' plan until age 26) are not related to government spending or revenue.

Thus, those provisions couldn't be modified using reconciliation. For example, the parliamentarian specifically ruled that essential health benefits can not be part of reconciliation.

These provisions are popular, but they also increase premiums (for example, because you can't charge sick people more, healthier people subsidize them with higher premiums). To counteract that, Obamacare:

  1. Imposed individual and employer mandates, so healthy people would get insurance, decreasing average health costs and thus premiums.
  2. Provided generous premium subsidies and cost-sharing reductions (latter attempted to subsidize deductibles and co-pays, but there was a glitch in the text of the bill).
  3. Funded risk corridors (subsidies to insurance companies in early years, to drive down costs and promote stability).
  4. Expanded Medicaid, so more lower-income people don't have to pay premiums.

Republicans fully or partially rolled back all of these in the new bill, in the past, or both:

  1. Zeroed out mandate penalties. They tried to replace this with a rule that you can't use insurance the first 6 months, but the parliamentarian rejected it.
  2. The subsidies in the Republican bill were less generous. They also sued to stop cost-sharing reductions (CSRs), and only funded CSRs in the new bill for two years (this was ironically rejected by the parliamentarian as replicating current law).
  3. Marco Rubio previously successfully convinced Republicans to defund risk corridors (this already went into effect in 2014). However, some courts have ruled that the government is still obligated to pay.
  4. National Federation of Independent Business v. Sebelius left Medicaid expansion up to the state (and some declined). The Republican bill would further rollback Medicaid expansion, and even traditional Medicaid.

Thus, due to reconciliation (and sometimes additional reasons), the Republican bill was essentially keeping the good but premium-increasing parts (e.g. no discrimination against pre-existing conditions), but trying to get rid of the parts that compensated for that (e.g. subsidies and the mandate).

This is part of why the CBO estimated millions would lose insurance. There were cuts to Medicaid and subsidies, while premiums stayed above the post-Obamacare level (higher than under Obamacare, due to no mandate) due to the pro-consumer provisions (e.g. essential health benefits, no discrimination against pre-existing conditions).

Thus, insurance was less affordable, and some people would either simply not be able to afford it at all, or make a judgement call that it was too pricey.

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They already passed Obamacare repeal by reconciliation. Barack Obama vetoed it, so it didn't become law. But with a President Donald Trump, presumably there would be no veto. So they just have to repeat whatever they did last time. Perhaps with changes to require coverage of preexisting conditions and adult children up to age 26.

Note: it's unclear if this was a total repeal or some kind of partial repeal. Coverage then doesn't say and newer coverage doesn't mention the older attempt.

  • "So they just have to repeat whatever they did last time" -- that is, of course, legally true, but politically it's worth noting that "last time" all parties involved would presumably have known that Obama would veto it and, therefore, any vote was "for show". In contrast, if they were to vote the same way now (and then Trump were to sign it) they would have to live with any negative consequences of the bill, and therefore some members of Congress may behave more cautiously if there are details that they fear might prove unpopular in the longer term. – owjburnham Jul 24 '17 at 14:08
  • The 2015 repeal was a partial repeal, precisely because they had to use reconciliation. See thehill.com/policy/healthcare/… . Indeed, Senator Cruz wanted "a one-sentence provision repealing the entire bill, which the Senate Parliamentarian Elizabeth MacDonough had ruled out of order". It is impossible to repeal all of Obamacare through reconciliation. – Matthew Flaschen Jul 30 '17 at 6:37
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In order for a bill to "pass" as reconciliation, there has to be different versions of that bill passed in both houses. So, there may be some provisions that were added by one body, or removed by the other, but, ultimately, in order for the bill to go to reconciliation, there have to be versions already passed in both houses.

So, some provisions may not have gotten past the filibuster, but the original bills, themselves, did.

Whereas, a repeal, just like the original bills that passed, would have to clear both houses. If they did, but there were differences, then those differences would likewise be dealt with in a reconciliation process, so the ultimate repeal might not match what passed either body.

  • Reconciliation, in this context, is a special process for budget bills, not the general process for coming up with a mutually agreed-on version. – Bobson Dec 6 '16 at 6:06
  • @Bobson - yes, are you saying that as an enhancement to my answer, or do you think my answer somehow states otherwise? There are very few bills, and certainly there's no way the ACA would be one of them, that don't have a significant budget/spending/fiscal component, so that's not much of a restriction, for the most part. – PoloHoleSet Dec 6 '16 at 14:48
  • "In order for a bill to "pass" as reconciliation, there has to be different versions of that bill passed in both houses." Sorry, this is not what reconciliation means in this context. "There are very few bills, and certainly there's no way the ACA would be one of them, that don't have a significant budget/spending/fiscal component" To use reconciliation, all provisions of the bill (not just some) have to be about spending, revenue, or both (depending on the type of reconciliation bill) (unless this rule is waived by 60 votes). – Matthew Flaschen Jul 30 '17 at 6:29
  • @MatthewFlaschen - The ACA was not about government spending and revenue in all provisions of the bill. Was the requirement waived by 60 votes? If so, then it passed the filibuster threshold and reconciliation is a non-issue. – PoloHoleSet Jul 31 '17 at 13:52
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The original post asked two questions: "How could....." and "Does this mean....". The answer to the first question is simply because the respective legislative parliamentarians rule on these matters.

The Parliamentarian rules on whether the budget reconciliation process may or may not be used on the entirety or parts of a bill.

This is illustrated by last Friday's 7/21/2017 news that the Senate Parliamentarian ruled that significant portions of the "replace" bill are not qualified to proceed under budget reconciliation. See https://www.budget.senate.gov/imo/media/doc/Background%20on%20Byrd%20Rule%20decisions_7.21%5b1%5d.pdf

Normally that is where the process ends.

As to the original post second question, my opinion is yes. As to the creation of a "looming disaster" that calls for a conclusion that I'm unqualified to give.

  • This post should be a comment, since it does not seem to answer the question completely. – bytebuster Jul 23 '17 at 19:24

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