Even With a Republican President, Obamacare Isn't Getting Repealed

Repeal­ing Obama­care has long been Re­pub­lic­ans’ holy grail, but it ap­pears more likely to be their white whale—even if a Re­pub­lic­an wins the White House in 2016.

The latest hope for re­peal comes in the form of re­con­cili­ation, a Sen­ate pro­ced­ur­al tool that al­lows le­gis­la­tion to pass with only 51 votes. And with Re­pub­lic­ans own­ing a Sen­ate ma­jor­ity for the first time since the law passed, 2015 is the party’s first real op­por­tun­ity to move a re­peal bill through Con­gress. Obama would veto the meas­ure, of course, but the plan was to set the stage for real ac­tion should the GOP cap­ture the pres­id­ency in 2016.

Sen­ate Re­pub­lic­ans’ re­peal ef­fort is demon­strat­ing why a full re­peal of the law is likely im­possible. Be­cause while re­con­cili­ation al­lows a bill to pass the Sen­ate with a simple ma­jor­ity, there are lim­its to the type of bills that can be moved un­der the pro­ced­ure, and a full re­peal falls out­side of that scope.

In­stead, even Sen­ate Re­pub­lic­ans con­cede that the full re­peal meas­ure would have to pass through a more con­ven­tion­al pro­cess—in­clud­ing over­com­ing a fili­buster.

“You’ll have to have 60 votes in the United States Sen­ate,” said Sen. Chuck Grass­ley, in an in­ter­view about re­con­cili­ation’s im­plic­a­tions for re­peal in 2017.

And giv­en the land­scape of the 2016 Sen­ate elec­tion, scor­ing 60 Sen­ate votes is un­likely. The party cur­rently con­trols 54 seats, and it would take a massive string of up­sets to as­semble a fili­buster-proof ma­jor­ity next ses­sion.

“The fact of the mat­ter is you can’t re­peal all of Obama­care in re­con­cili­ation,” said Doug Holtz-Eakin, pres­id­ent of the Amer­ic­an Ac­tion For­um and a policy dir­ect­or for John Mc­Cain’s 2008 pres­id­en­tial cam­paign.

But even if it’s not a vi­able path­way to re­peal, re­con­cili­ation is still far from feck­less in the GOP fight against the Af­ford­able Care Act. In­stead, Re­pub­lic­ans could use the pro­cess to strike down large chunks of the law—per­haps even enough to prune back the law to near ir­rel­ev­ancy.

“The pro­cess of us­ing re­con­cili­ation to re­peal parts of ACA is in many ways a tri­al run for a ser­i­ous ef­fort to re­peal ACA un­der a Re­pub­lic­an pres­id­ent,” said Ed Loren­zen, a seni­or ad­viser at the Com­mit­tee for a Re­spons­ible Fed­er­al Budget. “The dif­fi­culty they are hav­ing in put­ting to­geth­er re­peal le­gis­la­tion that sat­is­fies the Sen­ate rules re­lated to re­con­cili­ation may make it a less at­tract­ive strategy in 2017 [if] a Re­pub­lic­an pres­id­ent is elec­ted.”

A po­ten­tial em­bar­rass­ment

For this Con­gress, Re­pub­lic­ans’ worst-case scen­ario would be a fail­ure to find an anti-Obama­care re­con­cili­ation meas­ure that they can even get 51 sen­at­ors to line up be­hind.

So far, they’ve had some hic­cups. Sens. Marco Ru­bio, Ted Cruz, and Mike Lee have vowed to vote against any­thing short of full re­peal. But in­clud­ing a Planned Par­ent­hood de­fund in the bill threatens the votes of mod­er­ates such as Sens. Mark Kirk, Susan Collins, and Lisa Murkowski.  

For now, it re­mains un­clear what will be the con­tents of a bill by the time the Sen­ate votes on it, or when that will be, or even wheth­er GOP lead­er­ship will be able to scrape to­geth­er the mere 51 votes needed to send the bill to the pres­id­ent’s desk. But the pro­cess of fit­ting to­geth­er Obama­care pro­vi­sions like pieces of a puzzle to meet Sen­ate pro­ced­ur­al rules—and both mod­er­ate and con­ser­vat­ive ex­pect­a­tions—has demon­strated the dif­fi­culty of gov­ern­ing on the GOP’s elec­tion-win­ning philo­sophy of re­peal-and-re­place.

While the ex­er­cise is largely re­garded as polit­ic­al mes­saging, the GOP’s back-and-forth with the Sen­ate par­lia­ment­ari­an has real con­sequences for 2017, when Re­pub­lic­ans have pledged that the Af­ford­able Care Act will be re­pealed un­der a new pres­id­ent from their party. In­ten­ded to show what could hap­pen with new lead­er­ship, this year’s re­con­cili­ation pro­cess has in­stead shown the un­like­li­hood of a full ACA re­peal. But when it comes to how the health care law works, polit­ic­al mes­saging aside, it might not mat­ter wheth­er it’s fully or par­tially re­pealed.

“I think if we get to 2017 and we’ve got a Re­pub­lic­an House, Sen­ate, and pres­id­ent, what they’re go­ing to care about is the out­come, not wheth­er it’s the spe­cif­ics of re­peal-and-re­place,” Holtz-Eakin said. “They don’t ne­ces­sar­ily have to try to re­peal the whole thing. They have to modi­fy it and get to something they sup­port as a party.”

The House-passed bill cur­rently de­funds Planned Par­ent­hood in ad­di­tion to strik­ing down sev­er­al pro­vi­sions of the Af­ford­able Care Act: the in­di­vidu­al and em­ploy­er man­dates, the med­ic­al-device tax, the Ca­dillac tax, and the Pre­ven­tion and Pub­lic Health Fund. An ad­di­tion­al auto-en­roll­ment pro­vi­sion was in­cluded in the House bill, but was used as a pay-for in the budget deal passed by Con­gress last month.