We’re a couple of weeks removed from the Supreme Court’s 6-3 decision in King v. Burwell upholding the legality of the Affordable Care Act’s insurance subsidies, and it’s growing increasingly clear just how much Republicans in Congress were banking on the court to do their dirty work for them. But now that the court has sided with the government, full responsibility for fulfilling the promise of repealing Obamacare falls to Republicans in Congress, and they’re having a hell of a time figuring out what to do.
Way back in March, Republican leaders in the House and Senate agreed upon a new strategy to try and repeal the healthcare law – they’d nuke it via budget reconciliation. It’s a one-shot tactic that would allow them to push a repeal measure through to passage without having to first overcome a Democratic filibuster. The GOP leadership had previously been wary about going down that road, since it would take away their best tool for getting important, non-symbolic legislation passed. But they figured that repeal-through-reconciliation would make their cranky conservative members happy, and it would finally force President Obama to veto a repeal measure, so it was worth it for the political benefit. They passed a budget resolution which instructed five committees spread across the House and Senate to come up with language repealing portions of the ACA by no later than July 24 – two weeks from today.
With that self-imposed deadline bearing down, one would think Republicans would be busily working to make good on their promise to force an Obamacare repeal to the president’s desk. But they’re not. In fact, as Politico reported yesterday, Republicans in the Senate are “downplaying expectations” that they’ll actually go through with a repeal via reconciliation, and won’t commit to meeting the July 24 deadline:
The chairmen of the key Senate committees overseeing Obamacare — Orrin Hatch of Finance, and Lamar Alexander of Health, Education, Labor and Pensions — say they haven’t drawn up reconciliation plans, saying doing so is up to leadership.
Sen. John Barrasso (R-Wyo.), a member of the Senate leadership and a point person on health policy, said there’s no rush to do reconciliation immediately — and that Senate leaders haven’t decided on how to use the fast-track budget tool.
“There’s no timeline on the reconciliation bill, so it can be used at any point,” Barrasso said, even though the GOP’s own budget resolution had instructed five health care committees — two in the Senate and three in the House — to come up with a repeal plan by July 24.
So what happened? Well, as my colleague Jim Newell has pointed out many times, one can’t simply just force whatever legislation one wants through using reconciliation. There are a bunch of rules that have to be followed, one of which is that the legislation can’t increase the deficit. The Republicans asked the Congressional Budget Office to calculate the impact of repealing the Affordable Care Act, and even when they jiggered the numbers using the deficit-masking magic of dynamic scoring, the CBO still found that doing so would increase the deficit by a significant amount.
That finding threw up several political hurdles: they’d either have to scale back their repeal ambitions or make steep cuts elsewhere in the budget to make up the difference. Neither option was particularly viable: conservatives would balk at anything less than full repeal, and moderates and vulnerable incumbents would be loath to sign on for drastic cuts to other domestic programs just to pass a symbolic Obamacare measure.
But King v. Burwell offered a way to cut through all that messy business. If the court had invalidated the subsidies, the Republicans would have found themselves in “crisis response” mode as opposed to “pass a symbolic repeal for purely political reasons” mode. They could have argued that the law was damaged beyond repair, and that they were duty-bound to be rid of it as soon as possible, which would mean using reconciliation to pass a repeal and forcing President Obama to step in and save his foundering law. Sen. Barrasso indicated as much when talking to Politico:
If the Supreme Court had eliminated federal subsidies under Obamacare in two-thirds of the states, the GOP would have moved quickly to use reconciliation to deal with the fallout.
“Had the King decision gone the other way … there would have been an immediacy to use reconciliation,” Barrasso said. “But since the decision went the other way, that immediacy isn’t there.”
And so now they’re stuck. Conservatives in Congress are still hounding the leadership to go through with the reconciliation push, regardless of the political and budgetary concerns. The leadership might have been more amenable to those demands if King v. Burwell had gone their way. But it didn't, and they're left with deadlines they’re not ready to honor and promises they’re now reluctant to keep.