Can Obamacare be repealed, in its entirety, through the budget reconciliation process?
Some Republican leaders were hopeful that they would not be forced to answer that question. With a decision in King v. Burwell looming, it became increasingly clear that they planned not to keep the promise they had made in their budget to use reconciliation to repeal Obamacare. Instead, they would use it for some kind of response to the expected decision.
In that environment, questions about the feasibility of repealing Obamacare using reconciliation were put on the back burner. But with the Supreme Court’s unexpected and indefensible ruling on King v. Burwell, Republican leaders are expected to return to their initial promise.
If you believed most of what you hear and read on this subject, you would be certain that the answer to the initial question is: No. Reconciliation cannot repeal the law in its entirety — only individual provisions affecting the budget. Furthermore, the Congressional Budget Office says that repeal would increase the deficit, and any action that would do so is ruled out in reconciliation.
With due respect to those voices, Congress indeed can — on the basis of reconciliation statute and reconciliation precedent — repeal all of Obamacare using that process.
There are obstacles, but they are not insurmountable.
First, it should be noted that the Byrd Rule, which restricts what can be done in reconciliation, is functionally relevant only in the Senate. The House rule governing debate on a reconciliation bill would protect it from Byrd Rule–related points of order. Therefore, in the House, a reconciliation bill is essentially whatever a majority says it is.
In the Senate, it is more complicated, because reconciliation bills can’t be protected by the Rules Committee, and therefore Byrd Rule points of order are subject to a 60-vote threshold, thus negating the benefit of reconciliation (the 51-vote threshold).
So the first obstacle in the Senate is the jurisdictional question — that is, the question of which authorizing committees submit what legislation to the Budget Committee. Additional questions follow from that one, such as whether or not those authorizing committees have met the instructions given to them by the Budget Committee, and so on. This would not be an easy problem to solve in the Senate, where multiple committees have jurisdiction over Obamacare. But the House should be able to supply an easy fix. It could pass its reconciliation bill (again, protected from points of order) and send it to the Senate, and when the Senate takes that House-passed bill off its calendar (legislative parlance for bringing the bill directly to the floor), the parliamentarian would no doubt recognize it as a reconciliation bill because the House treated it as such. That would allow the majority leader to put the bill on the Senate floor and bypass the Senate’s jurisdictional questions.
The second obstacle is the deficit impact. The Byrd Rule stipulates that reconciliation should reduce the deficit. Skeptics quickly invoke a recent CBO score that found that Obamacare repeal would increase the deficit by $353 billion under a static score and $137 billion under a dynamic score. However, it is most important to realize that the chairman of the Senate Budget Committee has sole authority as the scorekeeper for reconciliation legislation, and he can stipulate the score of the bill however he wants.
While the chairman’s score should be grounded in respected analysis, the way Obamacare was scored by the CBO leaves a path forward for the chairman to show, solely using CBO numbers, how repeal would reduce the deficit.
The CBO’s Obamacare score double-counts the law’s Medicare savings, crediting them both toward increasing Medicare’s solvency and reducing the overall budget deficit. With a letter from the CBO detailing the effect of this double counting and showing it to be larger than the deficit impact of Obamacare under a standard score, the Budget Committee chairman, using only the CBO’s own numbers, can put forward a serious score that demonstrates that Obamacare repeal would reduce the deficit.
Now comes the final and arguably toughest obstacle: the fact that, to be voted on in reconciliation, any provision must be “budgetary.” That is, it must affect the budget in a substantive way, and this effect cannot be tangential or secondary to the provision’s main impact. This restriction, when read a certain way, would raise questions as to whether or not things like Obamacare’s insurance regulations could be repealed through reconciliation. That is because, although those regulations have significant budget implications, many argue that the impact would be incidental.
But the bills for full repeal of Obamacare that have been passed by the House in previous years don’t target specific provisions of the law — which number in the hundreds. Instead, these bills cite the law as a whole and, to paraphrase, say: “Obamacare is hereby repealed.”
The Byrd Rule does not define what a “provision” is. Precedent would suggest that a single provision could be as large as an entire, multi-section, multi-title law. Arguably the most famous use of reconciliation — for the 1996 welfare-reform bill — repealed and replaced the Aid to Families with Dependent Children (AFDC) law with one provision. It did so even though the AFDC law contained within it multiple sections, including both budgetary and clearly non-budgetary sections.
Even more relevant, this very technique of creative bill writing was used to pass Obamacare in the first place. The Democrats used their reconciliation bill to repeal the much-maligned Cornhusker Kickback, which was included in the original Senate-passed Obamacare bill but which the House insisted be removed. The kickback did not have a budget effect during the first five years (the timeframe for that particular reconciliation bill), but they managed to fit it into a larger provision that included items that did have a budgetary impact.
That wasn’t a problem then, and it shouldn’t be a problem now. In fact, if the parliamentarian were to look behind the plain text of any repeal bill being considered, that would threaten to open up a slippery slope for all legislation, since most bills considered by Congress refer to combinations of previous laws and the U.S. Code that you could read behind in many different ways.
Of course, that wouldn’t be the end of the story: President Obama would surely veto it. But that might actually strengthen the repeal movement.
To recap: The House could pass a one- or two-provision reconciliation bill protected through the normal process against minority points of order. The Senate could then take up the House-passed bill, thus bypassing its own jurisdictional hurdles. The Budget Committee chairman, using CBO numbers, could then show that Obamacare repeal, properly defined and properly scored, would reduce the deficit. The bill’s provisions would be clearly budgetary, as they would affect trillions in federal spending and revenue. In this scenario, the parliamentarian would have to break with past precedent if he wished to deny the Senate’s ability to pass this bill as a reconciliation bill, with only 51 votes needed to send it to the president’s desk.
Of course, that wouldn’t be the end of the story: President Obama would surely veto it. But that might actually strengthen the repeal movement in three ways. First, it would force every single Republican presidential candidate to commit to signing such a bill in 2017. Second, it would reaffirm that a GOP-controlled Congress was serious about sending a bill to the new president’s desk in 2017. And third, it would ensure that the law does not calcify, since every single insurance company, hospital, special-interest group, and boutique lobbying firm would have to plan for the eventual repeal.
To be clear, the very nature of the Byrd Rule is subjective, but the burden should be on those who say reconciliation can’t work in this way, because the letter of the law and precedent both suggest that Obamacare can be repealed using reconciliation. In other words, the burden is on those who say we can’t repeal all of Obamacare using reconciliation, not on those who are showing how we can.
— Jason Yaworske is a legislative strategist for Heritage Action, focusing specifically on health care and budget issues.