Politics & Policy

The Senate Parliamentarian Seems Open to Robust Obamacare Repeal

Sen. Mike Lee (Reuters photo: Joshua Roberts)
The House should not limit ‘Ryancare’ to avoid an imaginary Senate smackdown over ‘non-budgetary’ items.

Throughout the Ryancare debate, the House’s Republican leadership has depicted the Senate parliamentarian as a cruel schoolmarm, eager to smack her yardstick across the knuckles of any GOP effort to give Obamacare the full-throated repeal and replacement that Republicans have promised for years.

But this scaricature appears badly overblown. Senate Parliamentarian Elizabeth MacDonough seems more like a fair-minded judge, happy to weigh Republican arguments for why the Senate should consider broader repeal-and-replacement language under filibuster-proof reconciliation rules.

“What I understood her to be saying is that there’s no reason why an Obamacare repeal bill necessarily could not have provisions repealing the health insurance regulations,” Senator Mike Lee told Philip Klein, managing editor of the Washington Examiner. The Utah Republican discussed this matter with MacDonough on Tuesday. Lee added: The parliamentarian said, there’s not necessarily any reason that would categorically preclude you from doing more, both on the repeal front and the replacement front. All sorts of things are possible.”

Lee’s conversation with the Republican-appointed parliamentarian contradicts the House leadership’s suggestion that she somehow had pre-vetted the drearily titled American Health Care Act, and that its text uprooted Obamacare as far as the Senate’s strictures would allow.

“She was also saying until very recently, nobody had even asked her about it,” Lee explained. “And yet one of the arguments consistently used by those behind the bill is, ‘This thing is the most aggressive we can pass and can get through Senate rules.’ And it’s just not true.”

RELATED: Mike Lee’s Obamacare Bombshell

The parliamentarian has been quite approachable lately, according to Tim Chapman, chief operating officer of Heritage Action for America.

“I have spoken with multiple Senate staffers who have had conversations with the parliamentarian over the last two days,” Chapman informed me last night. These legislative aides “have been told that nobody has adjudicated with the parliamentarian the issue of adding to the Ryancare bill the repeal of Obamacare’s insurance regulations. They also have been told the argument is open. Contrary to what has been spread around the Hill by the bill’s proponents, it is not a closed door.”

Chapman scoffs at the House leadership’s claim that, in order to remain reconciliation-friendly, Ryancare must contain language that is “budgetary” but not “policy-related.”

“The current draft contains pro-life provisions that are good,” Chapman said, “but arguing that those provisions are budgetary, and that repeal of the regulations is not, is just laughable.”

“The message is clear,” Chapman continued. “House Republicans should put as much as possible into the reconciliation bill to ensure that they repeal all of Obamacare and create a firm foundation on which to build a free-market health-care system.”

The Club for Growth concurs. It opposes Ryancare, at least until it includes the active ingredients that it, Heritage Action, and other free-market groups expect.

“We are skeptical of leadership’s argument that Senate rules don’t allow for repeal of certain regulations — especially when this bill already alters other regulations,” Andrew Roth, Club for Growth’s vice president of government affairs, stated late yesterday. “The House is unnecessarily (or purposely) using Senate rules to limit the scope of their bill.”

“Also, promises of repealing leftover elements of Obamacare at some later date when political courage — currently absent — will somehow be available, does not engender support now,” Roth added.

This courage deficit may be fueled by a surplus of confusion about the Senate parliamentarian’s role.

The House leadership insinuates that if even one item in Ryancare conflicts with reconciliation, the Senate parliamentarian will kill the entire bill, as if with a poison pill.

This seems inaccurate.

Instead, the parliamentarian’s counsel works more like a soft line-item veto. In other words, MacDonough might advise that provisions A through W are just fine but that items X, Y, and Z violate reconciliation. But that would not doom the whole bill. The Senate could proceed with A through W but set aside X, Y, and Z.

Or — very important — Vice President Mike Pence may exercise his statutory authority under the Congressional Budget and Impoundment Act of 1974 to overrule the parliamentarian and decide that any combination of X, Y, and/or Z is in order. Unless 60 senators vote to reverse the chair, Pence’s decision would stand, and the Senate could include X, Y, and Z (or a blend thereof) in the final bill. It then could pass the measure with 51 votes.

Obamacare: Requiescat in pace.

What does Elizabeth MacDonough say about all of this? Asked yesterday if the Senate parliamentarian’s office speaks with the media, a member of her staff replied: “No, we do not.”

With the Senate parliamentarian no longer the apparent roadblock to repeal and replacement that she has been portrayed to be, Republicans should consider a grand compromise that might speed the House bill toward passage.

Expanded Medicaid funding should continue through December 31 and then be capped. Such funds should be delivered as full block grants to the states. Governors should be given advance permission to put Medicaid funds into universal, tax-free health savings accounts, available to Medicaid recipients and all Americans who want them.

Such HSAs could accept direct deposits from Medicaid. Ryancare’s refundable tax credits would go into these HSAs, rather than as direct payments to insurance companies. HSA holders could use these funds to purchase health insurance, prescription or over-the-counter drugs, medical devices, wellness care, or anything else health-related. Americans would own, control, transport, and bequeath the funds in these HSAs.

Moderates would applaud the more generous funding that they and some of their Medicaid-addicted governors want. Conservatives would enjoy a serious blow for federalism, with dollars behind it, plus a solid boost for health savings accounts — the beating heart of patient power and greater choice in medicine.

Everybody wins!

Deroy Murdock is a Manhattan-based Fox News contributor and a contributing editor of National Review Online.

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