Balkinization: Is the Republican Effort to Destroy the ACA Dead?

Is the Republican Effort to Destroy the ACA Dead?

David Super

No. That question can be asked from a procedural perspective, a political perspective, or a practical perspective, but in each instance the answer is “no”. This post takes each of these points of view, explores the possible future of the Republicans’ efforts against the ACA, and identifies the markers that would actually mean that the assault on the ACA is finished.

Procedurally, the particular amendment the Senate was considering late Thursday night is dead. When a majority leader wants to hold onto the possibility of a revote, he or (someday) she switches to the winning side so as to be able to move for reconsideration of the vote. Senator McConnell did not do that, so absent a motion from one of the 51 senators that opposed the “skinny repeal”, that vote is final. But the vote was not on the underlying bill, which is still the House-passed American Health Care Act (AHCA). As a result, the Majority Leader can bring that bill back up at any time. He could even bring up an amendment substantially identical to the one that was defeated if he thought he had the votes. All he did after the vote was return the bill to the Senate calendar, where it is available for action at any time.

In addition, much of the impact of the Republican health care bills – although not of the “skinny repeal” that lost 51-49 – was the savage cutting of Medicaid. The House Budget Committee has reported out a budget resolution for Fiscal Year 2018 that would require congressional committees to make deep cuts in anti-poverty programs to pay for tax cuts. If the AHCA fails, the budget committees can easily add its proposed Medicaid cuts to the budget resolution and try to pass them again as part of a tax cut bill. That legislation, unlike AHCA, is likely to have powerful corporate support.

The procedural point at which the direct assault on the ACA will die is when the House and Senate agree on a budget resolution for Fiscal Year 2018 without the Senate having first passed a version of the anti-ACA reconciliation bill (AHCA or a substitute). At that point, the anti-ACA reconciliation instruction will have been superseded and the bill will no longer enjoy reconciliation protection against filibusters. A concurrent budget resolution for 2018 is a pre-requisite for the Republicans’ obtaining reconciliation protection for their tax cut bill. On the other hand, as long as they have no agreement about what they want to pass on taxes, they have little reason to finalize the budget resolution and close off their options on health care.

Politically, the vote late Thursday night was extraordinarily contingent, with stunning blunders by both the Administration and the Republican House leadership. For ACA supporters, it was far, far better than a loss, but those declaring the battle won are viewing what happened with remarkably rose-colored glasses. First, 49 senators have now clearly signaled that they will vote for pretty much anything. Yes, a few peeled off on the votes on preliminary amendments that everyone knew would fail anyway (and on which Sen. McConnell made no effort to enforce party discipline). But when the chips were down, 49 voted for “a pig in a poke”. We no longer have plausible hopes that Sens. Portman (OH) and Capito (WV) would refrain from savaging the ACA because of the consequences for the opioid epidemic or the vast numbers of people newly ensured people in their states. The supposed influence of anti-repeal Republican governors in Ohio and Nevada failed to sway Sens. Portman and Heller (NV). (To be fair, Sen. Heller did vote against both plans that would explicitly cut Medicaid so his vote might be in play on a broader repeal bill.) And the supposed libertarian principles of Sen. Paul (KY) quickly crumbled. Even the storied influence of the health care industry failed to keep Republicans from voting for a bill that would have been financially disastrous for it.

Second, of the three Republicans who did vote “no” – all of whom must remain opposed for the legislation to stall unless Sen. Heller replaces one of them – only Sen. Collins (ME) seems solid in her opposition. Earlier in the week, Sen. McCain (AZ) voted for a “repeal and replace” bill that violated all the principles he espoused: it was drafted in secret with no hearings or committee mark-ups, it was entirely partisan, and it would have increased dramatically the ranks of the uninsured. He had earlier been one of three senators demanding that the House commit to not passing the “skinny repeal” bill and sending it directly to the President. When Speaker Paul Ryan released a coy statement that made no such assurances – and House Majority Leader McCarthy told his Members they might need to postpone their recess to cast a quick vote on health care – Sen. McCain had little trouble smelling a rat. That hardly means he will oppose a bill that devastates the ACA but comes without procedural shenanigans.

As for Sen. Murkowski (AK), she would have humiliated herself had she voted for the bill two days after media reports of Interior Secretary Zinke’s crude threats to her. But she has not historically been much of a moderate or dissenter. She is far more engaged with muscling through environmentally deleterious development projects. Although the ACA’s loss would be devastating to the expensive health care infrastructure, one can imagine her responding to less thuggish overtures.

Finally, Speaker Ryan’s refusal to promise not to pass the “skinny repeal” bill as-is, even when that promise appeared crucial to the bill’s chances in the Senate, strongly suggests that this is just what he plans to do with any bill that passes the Senate. Thus, if any bill does get through the Senate, the ACA is probably doomed.

Majority Leader McConnell’s declaration that he is moving on after last week’s defeat does not spell the political death of the ACA repeal effort. Remember, Speaker Ryan said the same thing after the AHCA fell apart repeatedly in the House. The repeal effort will only die politically when an important Republican sponsors legislation that seeks to repair the ACA. Even a feeble proposal will compare very favorably with proposals to liquidate the ACA to pay for tax cuts. As such, the appearance of such a proposal with Republican sponsorship will make bills like AHCA impossible to defend.

Practically, the ACA’s operation will continue to suffer as long as Congress and the Administration raise doubts about its survival and management. Some insurers have attributed much of their announced rate increases to uncertainty coming from Washington. Insurers are unlikely to invest the up-front costs to enter unserved or underserved markets if they believe they may have only a year or two to recoup those costs. And the prospect of delays and difficulties receiving payments can discourage any business.

A good example is the President’s oft-repeated threat to cut off reimbursement to insurers for the ACA’s mandatory cost-sharing subsidies for low-income people. If he follows through on that threat, insurers will promptly sue for their money in the Court of Federal Claims. And they will surely win because 42 U.S.C. § 18071(c)(1) states:

An issuer of a qualified health plan making reductions under this subsection shall notify the Secretary of such reductions and the Secretary shall make periodic and timely payments to the issuer equal to the value of the reductions.

Pursuant to 28 U.S.C. § 2517, these judgments would be paid out of the permanent uncapped appropriation for judgments against the United States, 31 U.S.C. § 1304. (Thus, even if the House of Representatives were ultimately to prevail in its lawsuit alleging that no appropriation supports these payments, the financial outcome would be unchanged.) But having to go through the delay and expense of litigation is naturally unattractive to insurers, some of whom are raising their premiums or limiting their market participation as a result.

The practical threat to the ACA will end when Congress, and particularly the Administration, comes to feel invested in the law’s success. That may well not occur unless and until some bipartisan legislation passes to address some of the ACA’s actual shortcomings, allowing the Administration to claim that it is implementing a new law of its design rather than that of its predecessor.

Posted 11:17 PM by David Super [link]