It’s inevitable – the ACA in its current form will most likely not survive 2017. Republicans are to repeal the law and the House and Senate have already passed several procedural changes to allow for a repeal to take place. We do know something will happen – we’re just not sure what it will be.
Budget Reconciliation and ACA Repeal – How can it be accomplished?
The Senate has already passed a budget resolution that will shield repeal legislation from a Democratic filibuster and make it easier for a repeal effort by allowing a simple Senate majority of 51 votes rather than a 60-vote super majority. Many Republicans are already calling this budget resolution an “Obamacare repeal resolution”, but it does nothing at all to the existing ACA bill. This procedural move will simplify the repeal by ensuring that any future bill is immune to a filibuster.
Today, Republicans have 52 Senate seats and a House majority that effectively ensures no Democratic support will be necessary for repeal. The House has also passed a budget resolution with identical language – neither of which requires presidential signature.
But the easy part is over – the rest of the process is a steep, uphill climb. As the recent budget resolutions were debated, a significant divide within the Republican party had already begun to emerge. More than a few Republicans in both the House and Senate publicly pushed to slow down the repeal process. And that is just the beginning. Democrats voted against the budget resolution along party lines meaning that just one or two Republican Senate defectors will crush any efforts. Consumer groups, health-related interest groups, the AMA, hospitals, and Governors from both parties are voicing opposition to any repeal without a replacement plan.
With the budget resolutions now complete, Congress must tackle two issues – how much of the ACA do they want repealed and whether the repeal bill should include some provisions toward a replacement plan. Since no single committee oversees health policy, this where it really gets confusing.
Four separate committees (House Energy and Commerce, House Ways and Means, Senate Finance, and Senate Health, Education, Labor, and Pensions) will each draft its own version of a repeal bill. With each of these committees headed by strong willed personalities, significant obstacles are already in the way to achieve consensus.
The legislation will be in the form of a reconciliation bill to allow for special fast-track procedures. Since Senate rules generally prohibit the use of reconciliation for measures that have no effect on spending or revenue, the legislative draft would most likely leave the most popular provisions of the health law intact such as the prohibition on insurers’ denying coverage to people with pre-existing conditions.
At this stage of the process the Congressional Budget Office (CBO) must be involved. The CBO will issue their estimates on how much any repeal bill will cost (or save) — and how many people will gain or lose coverage. Then, once each committee completes their draft, the merger process begins so that one House bill and one Senate bill emerges. With Republicans strongly committed to repealing the Affordable Care Act, they must also be committed to each other. As each committee continues their work, the GOP can ill afford to lose a single Republican senator in either committee since the overall Republican majority is narrow.
Once a single bill from each chamber is complete, they will most likely be different. A conference committee would be convened with representatives from both the House and Senate to work through any differences. At that point, a repeal bill will be voted on in both chambers with a simple majority needed for passage. If passed, it would be sent to the President for signature.
But repeal is not replacement. A replacement bill will then need to be created and unlike the repeal bill, it will most likely have provisions that do not have an impact to spending or revenue which would then require 60 votes in the Senate.
Meanwhile, just as Obama had used executive actions to make changes to the law that did not require legislative approval, Trump will have the ability to also use executive actions to both undo what Obama had approved as well as to make changes of his own. What these might be still have broad speculation with little consensus.