News and Commentary

Is It Really True That Republicans Can’t Just Repeal Obamacare? Nope.

The excuse being pedaled by Speaker of the House Paul Ryan (R-WI) and his supporters is that the Republicans can’t repeal Obamacare in one swoop because the reconciliations process won’t allow them to repeal everything. This is simply false.

Ryan has argued that only the budgetary aspects of Obamacare–the taxes, spending and mandates–can be repealed through the simple majority reconciliations process. But Chip Roy noted in The Federalist that this isn’t true:

Obamacare’s onerous insurance regulations and mandates are the primary drivers of individuals’ and families’ rising premiums and deductibles. They are the very backbone of Obamacare’s oppressive centralization of health care. The regulations and mandates are crippling the health insurance market, driving up costs for patients, doctors, and insurers and degrading the quality of care that patients are receiving.

To argue that their budgetary impact is merely incidental to the rest of the law is absurd on its face. Even the Obama administration made this very argument before the Supreme Court in King v. Burwell, arguing forcefully that the regulations are inseparable from the rest of the law. Predicated on that alone, Congress has a case that full repeal through budget reconciliation is viable.

Daniel Horowitz echoed Roy’s sentiments in Conservative Review:

Two of the 24 regulations are actually repealed or modified in this GOP bill. They are called “actuarial value” and age-rating restrictions. They will only have a negligible effect, especially because actuarial value is not repealed until 2020, long after the death spiral will occur.

It’s not important to get into the details of what these regulations do, but the inclusion of them in the GOP bill demonstrates incontrovertibly that when Speaker Paul Ryan, R-Wisc. (F, 51%) wants to stick regulation repeal into budget reconciliation he can. There are also several other extraneous provisions in the bill that don’t have a positive budgetary effect, yet Republicans don’t seem to worry about the parliamentarian striking them out of the process.

Even if the Senate parliamentarian decided to block Obamacare’s full repeal from the reconciliations process, then the Senate can “put Vice President Mike Pence in the chair and overrule the parliamentarian,” per Roy, as precedent demonstrates.

Ryan has also argued that Health and Human Services (HHS) Secretary Tom Price can rescind most of Obamacare’s regulations, but this is also false. According to Horowitz, only the “essential benefits” that Obamacare mandates insurance companies to cover can be repealed through administrative de-regulation, but even then states are required to find a different way “to cover the same number of people.” The regulations that are largely responsible for the soaring health care costs–the pre-existing conditions and community rating mandates–cannot be repealed administratively because “they are written in plain language into the statute.”

The only way to repeal those regulations, then, is to repeal Obamacare in full, which can be done through the reconciliations process. But the GOP leadership doesn’t seem to have the political will to do it. If they’re truly concerned that repealing the pre-existing conditions mandate would harm them politically, they should eliminate the employer tax exclusion on insurance so insurance can be portable, therefore eliminating the issue of pre-existing conditions altogether, as Thomas Sowell has explained. Articulating this to the American people would help drum up political support.

But as Horowitz noted, the GOP leadership seems more intent on appeasing their overlords at the U.S. Chamber of Commerce instead.

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