When we wrote “Obamacare Repeal: For Show or For Real?” back in January, the point was that House Republicans were making a great show of trying to repeal Obamacare, but there was no chance their bill was going to pass. Their hopes for getting rid of the new national health care regulations were in the Supreme Court.
But Chief Justice Roberts found Obamacare constitutional as an exercise of Congress’s power to tax. (If you’re interested in the Court’s internal politics, the linked article is a good one.)
So now the only hope for Obamacare‘s opponents is Republican victories at the polls this November, delivering a new president and a Republican Senate.
But even that doesn’t guarantee a repeal. Under long-standing Senate traditions, bills can be held up if they don’t have 60 (out of 100) votes. Plenty of bills that could win a majority don’t go through the Senate because of a thing called the “cloture” rule.
There are some votes in the Senate that don’t require a cloture vote, though. “Reconciliation” is part of the annual budget process in which Congress marries up its new budget plan with the programs the government has running. You can get to a final vote on a reconciliation bill with a simple majority, not the 60 votes you need for other bills. It says so right there in 2 USC § 641(e)(2)!
Now, substantive law changes aren’t supposed to go on reconciliation bills—just budget stuff. You can change the level of spending on a government program, for example—that’s budgetary—but you couldn’t outlaw the possession of a rare breed of snake. That kind of thing doesn’t affect the budget.
Obamacare’s opponents are starting to see a silver lining in the cloud of the Supreme Court’s ruling. It makes pretty clear—Obamacare being a tax program—that it is something Congress can deal with on reconciliation. (Democrats used reconciliation in the process of passing Obamacare, the Reconciliation Act of 2010, specifically, so the goose and gander may cook in the same juice.)
That means Republicans don’t need to reach the impossible goal of having 60 senators in the next Congress. They just need to get to a majority. Oh, and they need the presidency, of course.
That’s the way to get rid of Obamacare. When the House passed H.R. 2, the “Repealing the Job-Killing Health Care Law Act” earlier this year, it was just for show. The real show is at the polls this November.
If Republicans win the presidency and the Senate, while keeping the House, watch for them to move legislation to repeal the Obamacare mandate as part of the budget process. You would think that a procedure with the name “reconciliation” would be about everyone getting along, but it might be the most explosive procedure the Senate ever uses.