Lessons Learned in High School Civics Class May Help Understand How to “Repeal and Replace” Obamacare

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 Guest blog post by Tim Robinson, Esq.
“I have to tell you, it’s an unbelievably complex subject. Nobody knew that health care could be so complicated.” President Donald Trump, Feb. 27, 2017

What is the future of healthcare in the United States? Despite the overwhelming complexity of our healthcare system, President Donald J. Trump and his administration are determined to “repeal and replace” Obamacare, also known as the Affordable Care Act (ACA).

As a matter of fact, Obamacare’s public approval has hit an all time high. While 45 percent of those polled believe the current healthcare law is a good idea, 50 percent of respondents have little to no confidence that the Republican plan will be any better. Whether you are in favor of Obamacare or support its repeal and replacement with Trumpcare, the ability to repeal and replace the ACA may be easier said than done.

Obstacles for Republican Replacement of Obamacare

To understand the hurdles confronting the advocates for repeal and replacement of the ACA, we’ll have to focus on the lessons learned in high school civics class.
First, it’s safe to assume that repeal legislation will pass the House of Representatives, which requires a simple majority vote. In fact, over the last several years, the House has voted to repeal or amend Obamacare more than 60 times.
Next, we move to the Senate, where things get more complicated. To pass a bill in the Senate, Republicans will need 60 votes to overcome a filibuster and bring the bill to a vote. The not-so-secret truth is that Republicans are having a hard time simply falling in line; without a complete plan to replace the ACA, some fear political fallout.
Unless all Republicans fall in line and vote to repeal the ACA, while also convincing eight Democrats to join them, any bill to repeal Obamacare will die on the floor without a vote. For argument’s sake, let’s assume the Republicans have the votes and are inhibited only by the filibuster.

Getting Rid of the Filibuster

Can’t the Republicans just get rid of the filibuster? After all, in 2013 Democrats who controlled the Senate did just that. Democrats removed the ability to filibuster President Barack Obama’s Cabinet level appointees and lower court appointments. Stopping short of rolling back the filibuster when it came to Supreme Court nominees, Democrats were interested in preserving the higher threshold for something as important as the nation’s highest court. Technically speaking, under Senate rules, a simple majority is required to remove the filibuster.

Perhaps, the only rationale preventing Republicans from removing the filibuster is the recognition that they themselves may need it in the future. In addition, when discussing Trump’s recommendation that the Senate “go nuclear” and abolish the filibuster for Supreme Court nominees, Senate Majority Leader Mitch McConnell (R-Ky) has said he does not think it will be necessary to go to such lengths. Also, McConnell has previously expressed his opinion that he believes it should require 67 votes to change Senate rules, which is a marked difference from former Sen. Harry Reid (D-Nev.), who led the Democrats in nixing the filibuster in the Obama years.

What about Budget Reconciliation?

Matters related to taxing and spending are subject to reconciliation and only require a simple majority, according to Senate rules. While the taxes and healthcare subsidies imposed pursuant to the ACA clearly fall within the scope of reconciliation, Republicans would have to argue that the entire ACA effects the budget. They would also have to show that it therefore should be subject to reconciliation and a simple majority vote. That’s no easy task.
The decision on whether to subject the entire ACA to reconciliation is up to the Senate parliamentarian, an individual charged with interpreting Senate rules. There is precedent for Republicans to fire the parliamentarian when they disagree with his decisions. But it is highly unlikely due to the politically charged atmosphere surrounding federal healthcare law.
 
In summary, assuming the Affordable Care Act in its entirety is not subject to reconciliation, it is likely that Republicans will successfully remove the taxing and spending portions of the ACA. This action will effectively gut the ACA, thereby paving the way for Trumpcare. Ironically, while Republicans have pushed for the repeal of Obamacare for the last seven years, the public has yet to see an alternative.
No one knows yet if the Open Payments Law, which is part of the Affordable Care Act, will change, remain the same or be removed from the law. More on this topic in a future blog post.

Tim Robinson, Esq.

General Counsel, CKO, Co-founder of MMIS, Inc.

Tim has served as co-founder and General Counsel for MMIS since 1999. Tim works with numerous pharmaceutical and medical device companies to assist with the implementation of the MediSpend cloud-based global compliance platform. Tim is a graduate of the University of New Hampshire Law School (JD) and Boston University School of Law (LLM) and speaks regularly at industry forums addressing healthcare compliance.

2 Comments

  1. Michaeline Daboul

    Modern Healthcare BREAKING NEWS: House GOP plan to replace Obamacare ditches tax on employer health plans…as Modern Healthcare just reported, the story in progress continues…it looks like Republicans will have to convince the Senate parliamentarian, Elizabeth MacDonough, that all the provisions of the bill are germane to the budget. And the bill can’t be deemed to increase the federal deficit over 10 years from now.

  2. Michaeline Daboul

    Obamacare will remain the Law of the Land.

    The Affordable Care Act, including the Open Payments Law, is here to stay. Modern Healthcare’s Erica Teichert , Harris Meyer and Virgil Dickson reported on Friday, March 24, 2017 in their article “GOP Obamacare repeal dies as House pulls American Health Care Act bill”. Paul Ryan stated it quite plainly “I don’t know what else to say other than Obamacare is the law of the land. It will remain the law of the land until it’s replaced,” Ryan said. “We’re going to be living with Obamacare for the foreseeable future.” Read more here: http://www.modernhealthcare.com/article/20170324/NEWS/170329944

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