So where do things stand with the Affordable Care Act (ACA) now that the dust has settled from November’s midterm elections? With Republicans seizing control of the U.S. Senate and an expanded- and newly emboldened- conservative majority in the House of Representatives, expect a slew of new political attacks on the health care reform law. While Bill McIntyre and Elizabeth Harrington noted in their November 6 post for the Morning Consult that election night polling indicated that for most voters the ACA was not a major factor in their decision on how to cast their ballot, it WAS a huge issue for the Republican base. And herein lies the rub for GOP leaders as we move forward into the new Congress. How can they persuade major segments of their caucuses to abandon their single-minded fixation with repealing ACA and move on to deal with matters that the public really cares about?
We can anticipate an early vote in both houses of Congress calling for outright repeal of the health law. Senator McConnell (R-KY) has already promised as much. You can bet that Senate Democrats will filibuster the measure and simply put Republicans will not be able to muster the necessary 60 votes to pass a stand-alone repeal bill. At this juncture it is highly unlikely that Tea Partiers and other conservatives will be content with that symbolic vote alone. Hard right groups are already calling for their pound of flesh and demand that McConnell and Boehner use budget reconciliation- which requires only 51 votes to pass the Senate- to repeal the ACA. Dan Holler, the communications director of Heritage Action, told The Hill newspaper that the “the most important” action that the new GOP majority could take is to use “reconciliation instructions to repeal ObamaCare.” Other mainline Republicans have expressed skepticism about the reconciliation strategy. In that same article, budget guru Bill Hoagland noted that this could tie the Senate in parliamentary knots since many of the ACA provisions are not primarily budget related and would be deemed by the parliamentarian to be “extraneous.” He estimated there would be at least 27 parliamentary points of order that that repeal opponents could make before a path was opened to repeal the law, and each would require 60 votes to overcome. Needless to say, the Senate GOP lacks the votes to meet this threshold, and even if it did, President Obama vowed in his postelection press conference to veto any bill that would repeal the Affordable Care Act or make changes that would “undermine the structure of the law.”
And that may only be the tip of the iceberg when it comes to a newly invigorated rightwing assault on the ACA. Starting early next year, expect a host of oversight hearings in both chambers designed to draw public attention to what various Republican lawmakers view as weak links in the law. This is to lay the groundwork for pushing various changes to the law. Senator McConnell has already said he would seek to raise the definition of full-time employee from 30 hours to 40, a favorite proposed fix being advanced by the business lobby. Others, including a number of Democrats, are pushing a repeal of the medical device excise tax, while some are calling for eliminating the Independent Payment Advisory Board established under the ACA to identify Medicare savings without affecting coverage or quality. This is only a small part of the overall laundry list of proposed changes. To that we need to add a plan advanced by Representative Paul Ryan (R-WI) to convert Medicare into a premium support system and radically restructure and slash Medicaid. To put it mildly, each of these proposals has major shortcomings but I will leave it to another time to give you my two cents on them. The bottom line is that we are entering a new period of combat over the future of this historic law. Most Americans have grown sick and tired of ACA political warfare- they want the law fixed not dismantled- however a large number of GOP lawmakers and outside conservative groups are unwilling to acknowledge this fact of life.
But that’s only the legislative branch’s piece of the action. The Supreme Court’s announcement that it would take up a challenge to the 4th Circuit Court of Appeals decision in King v. Burwell may be of far greater significance. That decision upheld an IRS ruling that individuals who purchase health insurance through federally operated exchanges are eligible for tax subsidies. Plaintiffs contend that a literal reading of the statute allows for tax credits in only exchanges “established by a state.” The principal congressional sponsors of the ACA strongly dispute this narrow interpretation of the law, but if the King plaintiffs were to prevail it would gut a core provision of the ACA. Researchers for the Robert Wood Johnson Foundation and the Urban Institute found that 7.3 million people could lose over $36 billion in subsidies by 2016. This inevitably would cause a major spike in the number of uninsured Americans. The Court’s decision should come down before the end of its current term.
We are by no means out of the woods when it comes to judicial and congressional challenges to the health care reform law. 2015 promises to be yet another year of major consequence for the ACA.
Chuck Loveless is a senior advisor at NVG, LLC