In light of yesterday's Supreme Court ruling, there are competing schools of thought on the law's future. Some credible, sensible observers believe "Obamacare" is now secure -- after having cleared this legal hurdle, it'd take an extraordinary and highly unlikely step from a future Congress and president to undo what's been done.
As much as I'd like to agree, the road to repeal doesn't seem as arduous as some have suggested. Congressional Republicans, just this morning, reiterated their intention to kill the law, eliminate the benefits, scrap the coverage, and take the country back to the old, dysfunctional system.
Repealing the law won't happen before January 2013. It would be dependent on a triple Republican victory this November: Mitt Romney would need to defeat President Barack Obama, Republicans must hold their majority in the House, and they must also gain enough seats in the Senate so they have at least 50 of their own in the upper chamber.What about the filibuster? Don't you need 60 votes to do anything in the Senate?Not in this case. Because Chief Justice John Roberts' majority opinion ruled the individual mandate a "tax," a Republican-led Senate could repeal that provision -- and others -- using what is called "budget reconciliation."
Didn't Republicans, as recently as 2010, characterize reconciliation as an outrageous abuse -- tantamount to cheating -- that tears at the very fabric of our system of government? Well, yes, but these guys have a way of forgetting such details, and the media usually plays along.
Indeed, true to form, House Majority Leader Eric Cantor (R-Va.) and Senate Minority Leader Mitch McConnell's (R-Ky.) office both admitted that GOP policymakers would consider using this legislative shortcut to kill the health care law, regardless of the consequences.
It's tempting to think Senate Democrats, so long as there are 41 or more of them, would simply block any such efforts, protecting families and consumers. But therein lies the point: Republicans would use reconciliation, circumvent the filibuster, and do as they please.
The pushback, from Ryan Lizza among others, is that reconciliation "can only be used for policies that have budgetary effects and a C.B.O. score." Since so much of the law, including the consumer protections, aren't related to the budget, it might seem as if reconciliation would be of limited value.
But I think Matt Yglesias is right when he notes, "The GOP is more ideologically unified and more focused on advancing a broad conception of the national interest rather than parochial concerns of individual legislators." Whether reconciliation can be used in a case like this would be up to a congressional parliamentarian, but we already know that Republicans aren't above firing parliamentarians who stand in the way of the GOP agenda.
That is how you get things done in Washington when you want to get things done. And my view is that Republicans, at this point, really do want to repeal the Affordable Care Act. They don't like that it raises taxes, they don't like that it spends money on the poor, they don't like that it rolls back Medicare privatization, and they don't like that it pushes health insurance companies in the direction of becoming regulated utilities. If they genuinely lack the votes for repeal they won't repeal it, but they're not going to let interpretive disputes over what is and isn't a budgetary measure hold them up.
If Romney wins in November, and there's a Republican Congress, I'm hard pressed to imagine how the Affordable Care Act survives.
I'd add one addendum to this, however. In 2014, the law is set to be implemented in its entirety, and once that happens, I believe it will be next to impossible for Republicans to repeal the law. It's one thing to kill benefits that haven't kicked in; it's something else entirely to kill benefits struggling American families are already enjoying.
In other words, it all comes down to 2012.