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June 28, 2012 4:01 PM The ACA Repeal Scenario

By Ed Kilgore

Some supporters of health care reform have probably reassured themselves in the face of Republican threats to repeal it that the same bloody tactics GOPers used to fight ACA would be available to Democrats resisting its repeal. I’m afraid that’s that may be a vain hope.

Remember the big debate in 2010 as to whether Democrats could or should use “reconciliation” to pass ACA? Well, they didn’t, of course, but while there was a case to be made that you can’t enact something as complicated and wide-ranging as ACA as part of the budget process, there is zero doubt it would be easy to disable it simply by denying funding for the subsidies, the Medicaid expansion, the exchanges, etc., etc. All of these actions are entirely legitimate in a reconciliation bill, which cannot be filibustered. And on top of everything else, as TPM’s David Kurtz astutely observed today, the Supreme Court’s definition of the mandate as a “tax” may well make the mandate itself germane to a reconciliation bill.

It’s true that it will be difficult to treat the insurance regulation portions of the bill—which are, of course, also very popular—as germane to a reconciliation bill. But it’s unclear Democrats would go to the mats to defend those absent all the other pieces of ACA that would help avoid the big premium increases regulation might otherwise create. I suppose Democrats could withhold support for modification of the insurance regs and demand retention of other aspects of ACA in exchange. But that’s the sort of hardball tactics Senate Democrats have been less than willing or able to deploy in the past.

The best strategy for maintaining ACA, of course, is to win the damn elections.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • Peter C on June 28, 2012 4:08 PM:

    ED! Have you forgotten 2001 - 2007??? OF COURSE, they'd use reconcilliation if they got the chance; whether that was legitimate or not! Heck! Bush broke the FISA law in secret and then denied that he did until the proof surfaced.

    They don't care about the legitimacy of their actions when they are in power. That's one of the things that makes them different from us.

  • mcc on June 28, 2012 4:08 PM:

    It would make the mandate germane to a reconciliation bill, but reconciliation bills can only be used to decrease the long-term deficit. So they couldn't use that to strike down the mandate penalty without making up the money somewhere else.

    Another big concern besides ACA defanging by Congress is who holds the Presidency next year. The Presidency has a lot of leeway in how the ACA is implemented and whether it's implemented well (and whether it's implemented in a way that broadly benefits low-income people, immigrants, LGBTs and other groups Republicans don't like).

    "Remember the big debate in 2010 as to whether Democrats could or should use 'reconciliation' to pass ACA? Well, they didn’t, of course"

    They did, a large chunk of it anyhow. http://en.wikipedia.org/wiki/Health_Care_and_Education_Reconciliation_Act_of_2010

  • Ron Byers on June 28, 2012 4:14 PM:

    "The best strategy for maintaining ACA, of course, is to win the damn elections."

    Then we ought to kick the lamebrained cowardly consultants to the curb, roll up our sleeves and win the damn elections.

  • c u n d gulag on June 28, 2012 4:26 PM:

    Conservatives, just like after the Civil Way, can't, and don't, accept defeat.
    They fight on!
    I admire that.

    Especially, since the Democrat that I reluctantly support, would run away from an upset crippled novice nun holding a rosary, even if they had a division of troops, all armed with the latest legal weapons WMS's.

    If the Democrats don't circle the wagons after this, and rub the R's faces in the mud and gravel until nothing but some tattered skin is left over the Conservatives skulls, and they finally give-up, they will rise again, and the D's will, again, deserve to lose.

    NOW THAT IT'S LEGAL - SELL IT, YOU GUTLESS FECKIN' COWARDS!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  • mcc on June 28, 2012 4:44 PM:

    Just wanna say it's always weird to see people complaining "the Democrats" should do more to sell the ACA when independent progressives have done almost nothing but spray vicious smears against the ACA since it passed. Maybe the democrats would find it easier to run on the ACA if the blogs on our own side hadn't worked so hard for so long to make sure the ACA is unpopular even among the left.

    I mean, what are YOU doing to sell the ACA? I'd like to see Obama push the ACA more but I'd also like to see, I don't know, the Huffington Post or any of these independent media organs controlled by what is supposed to be the left push the ACA more. I dunno why we act like we have to sit around and wait for "the Democrats" to do things when on some things (shaping public opinion) we might have more power than they do.

  • T2 on June 28, 2012 4:55 PM:

    they can't repeal ACA, a Federal Law, with Obama still the president. He'd veto it.
    Please correct me if I'm wrong.

  • DisgustedWithItAll on June 28, 2012 5:04 PM:

    "The best strategy for maintaining ACA, of course, is to win the damn elections."

    To win damn elections, Democrats need to grow a spine, trumpet and explain their successes, and STAND UP TO BULLIES.

  • Jasperinboston on June 28, 2012 6:56 PM:

    ****It’s true that it will be difficult to treat the insurance regulation portions of the bill—which are, of course, also very popular—as germane to a reconciliation bill.*****

    It's also true that if they get a Senate majority, the GOP is free to hire a parliamentarian to interpret the rules on reconciliation however he's told. Under such a scenario I see no reason whatsoever they couldn't pass a clean repeal bill with 50 votes plus Vice President Pawlenty.

    Yup, we need to win the damn election.

  • DKDC on June 28, 2012 9:02 PM:

    First the Repubs would have to win the Presidency and a majority in the Senate.

    But even then, it may not be as politically easy as you think. If the republicans dismantle ACA now, a lot of people will lose a lot of benefits.

  • Lance on June 29, 2012 7:45 AM:

    David Kurtz astutely observed today, the Supreme Court’s definition of the mandate as a “tax” may well make the mandate itself germane to a reconciliation bill.

    I haven't read all the dissenting and concurring opinions, but I believe that only Roberts has said this was a tax, and only for half his purposes.

    So the actual Supreme Court decsion on this is actually eight to one against it being a tax.

    Happy to be proven incorrect if you've read all the justices.