Since Chief Justice Roberts saved the Affordable Care Act as a constitutional tax, Senator Mitch McConnell has flirted with the idea of using the reconciliation process to repeal the law (see here and here). This process would only require 51 votes, and bypass the filibuster. (It is fitting that the ACA finally passed the Senate without a filibuster in the same manner). Of course any such bill would be dead on arrival by the White House.
Yet, McConnell continues to float this idea. Whether it is serious or not, should be separated from whether it is even possible.
Sahil Kapur at TPM talks to a former Senate parliamentarian, who suggests that while the entire law cannot be repealed by reconciliation, parts of it affecting the budget can.
One former longtime Senate parliamentarian said a majority leader could make a persuasive case for using reconciliation to repeal core components of Obamacare, many of which have budgetary impacts. That includes the premium tax credits that help lower-income Americans buy insurance. It might even include the individual mandate, given that the Congressional Budget Office has said scrapping the mandate would save money.
“One could argue that a proposal that says no funds shall be used to implement the Affordable Care Act is fit for reconciliation. Doesn’t that save money? That’s certainly a legitimate argument,” said the former parliamentarian, who asked not to be named. “It wouldn’t repeal the ACA but it could starve it to death.”
That sets up tension between the GOP’s establishment wing and the tea party wing. The McConnell-led wing want to repeal smaller items like the medical device tax, which they might have a chance of getting President Obama to sign. Tea party lawmakers want to rile up their base by going big and slashing as much of the law as possible, and daring Obama to veto their bills.
The big question is how far Republican leaders are willing to go, and whether they find the votes in the Senate and House to pass an anti-Obamacare bill and put it on Obama’s desk.
The President’s veto pen will be awfully busy the next two years.