How might Republicans try to block the U.S. health reform law from going into effect? Let us count the ways.
Repeal, replace, defund, deregulate. And, lest we forget, litigate.
If all that fails, they can always shut down the government — if not during this week’s spending showdown, then the one after that, or the one after that.
In January, House Republicans voted to repeal the Patient Protect and Affordable Care Act (PDF here) entirely. Senate Republicans tried for repeal, too, but there aren’t enough of them to finish the job. Democrats, who control the Senate, pushed back and no matter how many times the Republicans try again, it’s hard to see them changing Democratic minds — including that Democrat with the veto pen, President Barack Obama.
The vote counts won’t keep them from trying. The legislative and legal action isn’t aimed only at stopping health care reform in its tracks, although that is what many conservatives desire. It’s also about keeping health care controversial and high-profile, part of the battle for hearts, minds and votes between now and the 2012 elections.
Democrats may hope the health wars will fade, that attention will turn to other topics, possibly an improving economy. But “Republican voters really care about doing away with ‘Obamacare,’” said Robert Blendon, an expert on health care politics and public opinion at the Harvard School of Public Health.
“The Republicans believe this issue will help turn out people on their side in 2012,” he added. That means compromise, in the foreseeable future, is less likely than ongoing attacks. In fact, when President Obama offered some flexibility this week to the states, influential Republicans rejected it.
Congressional Republicans would like to repeal “Obamacare” entirely — poof, be gone. In their view, it is, as U.S. Rep. Phil Gingrey, R-Ga., put it, “the worst bill that’s ever been passed in the history of the Congress.”
Failing to uproot it, they may instead try to cut off big pieces. Targets could include the individual mandate that requires most people to have insurance (and which public opinion polls have found to be unpopular); the penalties for large employers that don’t offer affordable insurance to workers; or the assorted boards and centers aimed at devising better ways of providing care and smarter ways of paying for it, particularly for the elderly, disabled or poor in Medicare and Medicaid.
Congressional Republicans have said that once they repeal health care reform they will replace it with something new — or maybe not so new. The leadership hasn’t unveiled replacement legislation, but many of the ideas Republicans on the Hill are talking about are familiar — health savings accounts, letting people buy insurance policies in other states, limits on malpractice awards, expanding high-risk pools for people who can’t get insurance because they are already in poor health.
Defunding is another action item, and it’s already begun. A bill to slash federal spending, approved by the House on Feb. 19, included nine, somewhat duplicative, amendments that would eliminate funding for health care reform, or prevent anyone in the government from being paid to work on putting it in place or enforcing provisions, like the mandate. As one lawmaker said, bureaucrats couldn’t even move a paper clip if it affected health care reform.
A 10th amendment would halt payments to assorted White House policy “czars,” although health czar Nancy-Ann DeParle just moved on to another position.
U.S. Rep. Denny Rehberg, R-Mont., chairman of the appropriations subcommittee that covers health, and the lead sponsor of defunding, said he would have gone even further in defunding if he could figure how to get around procedural constraints.
“I have tried everything within my power to write an amendment that would completely defund implementation yet withstand a point of order. This is the best I can do today,” Rehberg said. “I liken the situation with this bill to trying to drive a car to the moon. A car is the wrong vehicle for that purpose, but a car can take us on the first leg of the trip. It can get us to the launching pad. And I will continue to do everything I can to finish the journey.”
But the House version of the spending bill didn’t make it to the moon. It didn’t even make it down the hall to the Senate, which passed its own spending bill, with health care reform intact.
Theoretically, Congress was supposed to finish the dozen annual spending bills by Oct. 1, 2010, the start of the current fiscal year. But Congress isn’t always so great on deadlines, particularly when they spend so much of their time in a partisan gridlock and procedural pretzels. The temporary spending legislation now funding the government expires March 4, and Congress will have to decide whether to cut a deal, buy time with another short-term funding bill — or shut the government down. Health care reform is certainly not the only ingredient in the spending stew, but it’s in the mix.
The signs now are that a shutdown will be averted, at least for a few weeks, as the two sides near agreement on a very short extension. Similar scenarios could play out again and again because even though the fiscal 2011 bills aren’t finished, the two parties are already sparring over fiscal 2012 and Obama’s $3.7 trillion budget blueprint. Plus there’s that pesky vote about raising the national debt ceiling, again, coming up this spring. The health reform wars could end up part of that mix, too.
Health care reform isn’t cheap. The cost of creating health insurance exchanges, expanding subsidies and bringing more poor people into Medicaid, as well as myriad other programs and provisions that don’t get as much attention, runs around a hefty $938 billion over a decade, according to the Congressional Budget Office.
But what a lot of people don’t understand is that even though the law is expensive, it’s also paid for — and then some. Higher Medicare taxes on the wealthy, excise taxes on particularly expensive “Cadillac” insurance policies, fees for insurers, drug companies and medical device makers, and some money-saving changes to programs like Medicare and Medicaid more than make up for the new expenses. In its most recent estimate, the CBO estimated that health reform will actually reduce the deficit’s growth by $210 billion from 2012-2021 — and more in the future.
But not everyone believes the CBO, or believes that Congress will stick to its guns on some of the more politically painful savings steps contained in the health law. The Republicans in Congress and some of their allies in the business world have done their own calculations and basically concluded, “savings, schmavings.” The Patient Protection and Accountable Care Act, they say, will cost $2.6 trillion by 2023 and add $701 billion to the federal deficit during its first 10 years. They also say it will kill jobs, crush liberty and insert way too much government into the health care system.
In theory, most of the money for health care reform was written into the Affordable Care Act itself. It’s technically “mandatory” spending, not subject to the dozen annual discretionary spending bills drawn up by appropriations panels in the House and Senate. But real life — or at least real appropriators — doesn’t necessarily follow civics books. Appropriators can and do change mandatory spending. It happens so often that there’s even an inside D.C. nickname for it — “CHIMP” or change in mandatory programs. (When the White House or executive branch does it, it’s called M-Save — mandatory savings, one insider said.)
When lawmakers aren’t fighting over money, they can wrestle over rules and attempt to reverse or undo regulations. After Congress passes a law, the details get filled in through the regulatory process. When lawmakers don’t like a final rule, they can try to use the Congressional Review Act to try to block it. But that’s a tall order. Both houses have to pass it within 60 days and the president must sign it, or Congress must have a supermajority to override the veto. The act, part of the 1996 Contract with America bills, has been used successfully only once, when Republicans early in the President George W. Bush administration knocked out a Clinton-era ergonomics rule. Nevertheless, expect them to try. They probably won’t succeed but as Washington and Lee law professor and health reform supporter Timothy Jost said, the effort still has “symbolic value and harassment value.”
Another tool for stoking the base and wooing the middle is Congressional hearings. Republican committee chairmen in the House have pledged to air everything wrong with the job-killing, deficit-deepening, freedom-impinging health reform law. Democrats will counter with public airings of all the benefits Americans are already reaping – more coverage of sick kids, tax breaks to small businesses, preventive care for the elderly, letting young adults stay on a parent’s plan until age 26. C-SPAN will be very busy.
And while all this preoccupies Washington, Republicans in the states have taken to the courts to challenge the constitutionality of health reform, particularly the mandate. The rulings so far have been mixed, and it’s widely expected to end up in the Supreme Court, though it’s not clear whether that will be before or after the 2012 presidential election.
So what’s likely to happen? Stalemate? Compromise? Shutdown? All of the above? Nobody really knows. However 2011 turns out, many of the same fights are likely to play out again next year — both in the budget for fiscal 2013 and, implicitly, on the ballots for 2012.