Republicans plan on repealing ObamaCare "within weeks" of Trump inauguration

Will they or won’t they? The Washington Examiner’s Philip Klein says they will — meaning Republicans and their pledge to repeal ObamaCare. Despite rumors about delays and concerns over procedural roadblocks, Republicans on Capitol Hill tell Klein their commitment to immediate repeal is “ironclad.” They already have a strategy laid out for success, which borrows a page from Harry Reid’s playbook:

In the weeks following the presidential election, there’s been some debate about whether Republicans would actually go through with repealing Obamacare as opposed to getting cold feet. But after a number of conversations with senior GOP leadership aides in both chambers of Congress, this is the message I’ve received: Republicans are moving full-speed ahead on Obamacare, and could have a bill repealing much of the law on President Trump’s desk within weeks of him being sworn into office. …

The new Congress will be sworn in on Jan. 3 and will immediately get to work on a mid-year budget resolution. The budget resolution would require just a simple majority, and because it’s only a resolution, it doesn’t require President Obama’s signature. All that’s necessary is for the House and Senate to pass the same resolution. As a result, this part of the process could take place when Obama is still in office — and Republicans expect to have it finished by the end of their second week back, or around mid-January.

As an actual budget document, it won’t have much meaning, as the federal government will already be in the midst of the 2017 fiscal year and spending levels have already been set through the appropriations process — so it’s unlikely to be very contentious. Even though it won’t have an effect on spending itself, it will be significant procedurally, because the document will be the vehicle for Republicans to include reconciliation language. That language will be necessary for Republicans to pass a repeal bill through the Senate with just a simple majority, thus avoiding any attempt by Democrats to block the bill.

According to Senate rules, reconciliation bills cannot be filibustered, which is why Republicans only need 51 votes to succeed. They do, however, require a presidential signature, so they will have to time the bill in order to avoid Barack Obama’s veto pen (and phone). Donald Trump will take the oath of office less than three weeks after the start of the session, so it’s not going to happen until then — and might take a bit longer, since the budget resolution itself will still get some debate and editing along the way. The 2017 fiscal year has only been set through the end of April thanks to the use of continuing resolutions, so there still may be a few contentious issues left to hammer out. And be sure to real all of Klein’s lengthy report, which touches on some of the differences between Paul Ryan and Mitch McConnell about what can and cannot go into a reconciliation package.

That will still open the door to even more contentious issues — such as what to do with Medicare and some of the mandates, including and especially the “community rating” mandate on insurers. That’s creating a situation where individuals are increasingly defying their mandate to buy insurance at all, especially younger and healthier consumers who are picking up the costs for older and sicker Americans:

One particularly costly regulation is known as community rating, which says that, among other things, insurers can’t charge older Americans more than three times as much for insurance than they charge younger Americans. Though in theory this works out well for those who are older, it also makes insurance much more costly for younger Americans — to the point at which they are having trouble justifying purchasing it, despite the mandate to do so. Keeping this regulation in place while repealing the mandate would exacerbate problems in the individual market.

Republicans I spoke with say that such regulatory changes could be tweaked by HHS, as well as handled in subsequent replacement legislation.

That seems problematic at best. Community rating is a statutory requirement in the Affordable Care Act, in sections 2701 and 1252 (in a general sense, at least). There may be some wiggle room, but an attempt by incoming HHS Secretary Tom Price to allow insurers to assess risk and calculate premiums directly on an individual basis will likely get tied up in court until the statute gets repealed. That introduces even more uncertainty in the insurance markets, which will further incentivize insurers to flee them and make repeal even more complicated.

The approach Klein describes does hold the promise of careful working around the Medicare changes in the ACA. In my column this week for the Fiscal Times, I warn about the dangers of wholesale repeal with a president who is hostile to pursuing broader entitlement reform:

Republicans have to tread carefully with Trump on Medicare, though. The president-elect has emphasized that he does not want to overhaul the entitlement program, which cuts out some maneuvering room on mitigating the effects of total repeal. Price’s EFPS bill exists in legislative language now and could be enacted fairly quickly, at least those portions of it that could qualify under reconciliation, but its changes to Medicare would accelerate its coming insolvency by a few years. If Trump felt that he was getting trapped into working on broader entitlement reform, he might just balk at the whole project, leaving Republicans – and insurers — in limbo on Obamacare.

The alternative would be to unwind parts of Obamacare immediately through a partial repeal, but leave its Medicare components in place for a later date. That would take a more surgical approach, while Price could cut into the vast regulatory expansion created under the ACA by his two predecessors. It would take more time but would provide a better landing arc for the demolition of the program.

That would afford Republicans an opportunity to find enough Democrats to go along with a replacement. Not every aspect of their plan can pass through reconciliation, plus the lesson of Democrats’ go-it-alone approach should be obvious. Republicans could and did wash their hands of Obamacare and now dominate at every level of politics, while Democrats marginalized themselves into coastal and urban enclaves.

It’s time for the GOP to deliver on these promises, but they’d better take a careful approach if they don’t want to touch off political landmines.