In the Wall Street Journal.
Now that the Supreme Court has ruled ObamaCare’s individual mandate constitutional, the direction of American health policy is in the hands of voters. So how do we get from here to “repeal and replace”?
Step one is electing Mitt Romney as president, along with Republican House and Senate majorities. Without a Republican sweep, the law will remain in place.
But a President Romney does not need 60 Republican senators to repeal core elements of ObamaCare. Democrats lost their 60th senate vote in early 2010 after Scott Brown took Edward Kennedy’s seat. To bypass a Senate GOP filibuster and enact portions of ObamaCare, they used a special legislative procedure called reconciliation.
Reconciliation allows a bill to pass the Senate in a limited time period, with limited amendments, and with only 51 votes; filibusters are not permitted. In 2010, Democrats split their health-policy changes into two bills, one of which they enacted through this fast-track process. In 2013, a Republican majority could use the same reconciliation process to repeal those changes.
The reconciliation process, however, applies only to legislative changes to taxes, spending and debt, or the change must be a “necessary term or condition” of another provision that affects taxes or spending.
Crucial parts of ObamaCare meet this test. Thus, if a President Romney has cohesive and coordinated majorities in the House and Senate, a reconciliation bill could repeal the Affordable Care Act’s Medicaid expansion, insurance premium and drug subsidies, tax increases (all 21 or them), Medicare and Medicaid spending cuts, its long-term care insurance program known as the Class Act, and its Independent Payment Advisory Board, a 15-member central committee with vast powers to control health-care and health markets.
Chief Justice John Roberts ruled that the financial penalty enforcing the individual mandate is within Congress’s constitutional power to “lay and collect Taxes,” and that the mandate and penalty are inextricably linked. This should suffice to enable repeal, through reconciliation, of both the individual and employer mandates, and their respective penalty taxes.
The state exchanges and insurance rules—”guaranteed issue,” which forces an insurer to sell a policy to someone who is already sick, and “community rating,” which severely limits the insurer’s right to charge that person a higher premium—are procedurally more difficult. Yet both are linked to the individual mandate, which increases taxes. Whether they can be repealed in a reconciliation bill will ultimately be decided by the Senate Parliamentarian.
Once the individual mandate is repealed, these popular insurance changes cannot stand by themselves. Without the mandate, people have every incentive to save on premiums and not buy insurance until they fall ill. This will send premiums through the roof for healthy people and, if the government clamps down on increased premiums, destroy private insurance companies. Those Republicans who say they favor legislated guaranteed-issue and community-rating requirements but oppose the mandate will be forced to acknowledge that all three must go.
So, for those who are concerned about repealing Obamacare, this is the way forward. We have a tough battle to get it it done, but it is possible.
Filed under: News, House, Obamacare, Presidency, Reconciliation, Repeal, Replace, Senate, Tax