Sen. Chuck Grassley, R-Iowa, said a repeal would require 60 votes in the Senate.

Sen. Chuck Grassley, R-Iowa, said a repeal would require 60 votes in the Senate. Jacquelyn Martin/AP

Even With a Republican President, Obamacare Isn't Getting Repealed

Republicans probably won’t be able to fully repeal Obamacare in 2017 regardless of who’s president. But the difference between effective repeal and full repeal might just come down to semantics.

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.

But since the bill moved to the Sen­ate, it has run in­to is­sues with the Sen­ate par­lia­ment­ari­an, who is re­spons­ible for en­sur­ing the bill is in com­pli­ance. The man­date re­peals have re­cently been deemed non­starters, but lead­er­ship says it’s con­fid­ent it will be able to re­work the lan­guage of the bill to fit the Byrd-rule cri­ter­ia.

“I think the ma­jor ele­ments, the thing that our people care about the most, I think we’re go­ing to get there,” said Sen. John Thune. “But you have to work with how you word it. It’s a pro­cess.”

Miss­ing from the cur­rent bill are re­peals of Obama­care’s Medi­caid ex­pan­sion and its tax sub­sidies, as well as stip­u­la­tions re­gard­ing who and what in­surers must cov­er—all crit­ic­al com­pon­ents of the health care law. But the Af­ford­able Care Act is com­plic­ated, and its ma­jor parts were de­signed to work to­geth­er. If ma­jor pieces are re­pealed, the whole thing might have to be reex­amined to cre­ate a co­hes­ive, work­ing health care sys­tem.

And if that hap­pens, full re­peal versus par­tial re­peal could be­come a mat­ter of se­mantics.

“I think in the end, what we want to do, we feel like if we re­peal the in­di­vidu­al man­date, the em­ploy­er man­date, the taxes, you ba­sic­ally re­pealed Obama­care,” Thune said.

Demo­crats, on the oth­er hand, are poun­cing on the op­por­tun­ity to once again de­fend the health care law’s per­man­ence.

“Re­peal is a for­lorn hope of our Re­pub­lic­an friends,” said Sen. Chuck Schu­mer, the No. 3 Demo­crat in the cham­ber, in an in­ter­view.

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