Some GOP lawmakers’ plans for a sweeping, party-line vote on Obamacare might be more than the Senate can handle.
Key Republicans have been pushing to include elements of an Obamacare replacement in the same reconciliation bill that they would use to repeal parts of the law—a strategy dubbed “repeal-plus.” But that idea has met staunch opposition from conservatives, and the Senate’s procedural rules could pose an even bigger threat to quick, unified action on Obamacare.
A congressional aide said there are concerns about how the “replace” language is being written in the House and whether it would pass muster under the Senate’s Byrd Rule, which limits the types of changes that lawmakers can pass using the budget-reconciliation process.
Under the rule, reconciliation cannot be used to pass measures that don’t affect the deficit, or whose effects on the deficit are incidental to a simple policy change. The Senate’s parliamentarian rules on whether specific provisions comply with the rule. Any provisions the parliamentarian rejects would then need the standard 60 votes to pass.
Rather than wade into that thorny territory, members of the House Freedom Caucus say Republicans should simply pass the same reconciliation bill they passed in 2015.
“We’re dealing with the upper chamber. There is a more receptive attitude of just passing that than there is repeal-plus,” Freedom Caucus Chairman Mark Meadows said Tuesday.
Meadows told reporters that the Freedom Caucus wants to vote on a replacement plan at the same time as a repeal, but in a separate vehicle.
“I’m hopeful that the Freedom Caucus takes a position within the next 48 hours on a replacement plan that actually goes simultaneously along with a repeal position. We’re not there yet, but we’re working on the details of that,” Meadows said.
He also suggested that a second reconciliation bill could be used for a replacement, though that would mean the repeal and replace languages would be passed at different times.
Some Republicans have been pushing for a sense of direction before repealing the health care law, and Sen. Orrin Hatch has said replacement measures will be included in a repeal.
“I believe that the work to replace Obamacare should also begin immediately, meaning that our repeal bill should include as many Obamacare-replacement policies as procedures allow,” Hatch said in a floor speech last week.
A congressional aide told National Journal that Republicans are considering policies designed to “not only deliver relief from Obamacare, but also to provide more freedom and flexibility for states and individuals. We’re considering different opportunities to strengthen consumer-directed health care options, for example.”
Those policies could include new tax credits, expanded access to health-savings accounts, Medicaid block grants, and new high-risk pools.
But if the Senate parliamentarian throws out pieces of that plan, it’s unlikely that Republicans would win enough Democratic support to pass them in a second bill, said Robert Blendon, a professor of health policy and political analysis at Harvard University.
Republicans also are still divided over the substance of their replacement plan. Sen. Mike Lee said he thought it would be a bad idea for new subsidies to be included in repeal, and said the law should be scrapped first before deciding what comes next.
“There’s a lot less agreement on what comes next,” Lee told reporters last week. When asked whether he would support a repeal bill with tax credits, he said: “That’s going to be a problem, I’m telling you. That I think would imperil the repeal effort.”
Even if the provisions such as new health insurance tax credits clear the Senate’s procedural rules, divisions over their merits could slow the process down significantly and force a larger debate about taxes, said Larry Levitt, senior vice president for special initiatives at the Kaiser Family Foundation.
“I think there is a big fissure among Republicans over how much to spend on health care,” Levitt said. “With big disagreements over how much to spend, it will be hard to get consensus over what a refundable tax credit for health insurance or Medicaid caps might look like.”
Edmund Haislmaier, a senior research fellow at the Heritage Foundation’s Center for Health Policy Studies, said a lot of the impetus to include replacement policies in the repeal bill stems from lawmakers’ fears of destabilizing insurance markets without a plan to reshape them.
But he hopes that Tom Price’s confirmation as Health and Human Services secretary, and an impending proposed rule that aims to stabilize the marketplace, would settle some concerns.