So everyone is up in arms about President Trump and Speaker Ryan’s three-part plan for eliminating Obamacare. The first step is the repeal and partial replace. Step 2 is HHS and Secretary Price revising or eliminating most of the Obamacare regulations; and Step 3 is another piece of legislation that will implement the rest of the conservative, market-based health care reforms Republicans want to implement. It’s that last step that Republicans rightly worry will never come to fruition.
Here’s what I can’t figure out: Obamacare took only one step — the passage of the bill in the dead of night and using reconciliation, after Harry Reid and the Democrats promised they would not use reconciliation. Remember Nancy Pelosi’s in-your-face walk from the House office buildings to the Capitol carrying a gavel the size of a telephone pole? From that point, the Democrats treated the “Affordable” Care Act as an enabling act, pretty much doing whatever they wanted to keep Obamacare afloat, whether the law permitted it or not. Mandates were/weren’t enforced as needed, the IRS used money not available to it to provide subsidies, the federal government built websites for states, etc. etc. The whole thing was one giant kluge, but once the bill passed the Democrats were off to the races, doing pretty much whatever they felt like they needed to do to make Obamacare work, no matter what the statute actually said.
So here is what I don’t understand: why do Republicans have to go through this three-step kluge to get the repeal-and-replace done? Why can’t we pass our own act and then go off to the regulatory (or, in our case, the deregulatory) races?
The answer lies in the Byrd Rule, an arcane rule that requires that bills that change Federal budget outlay and therefore affect the budget deficit. There is more to it than that, but that is the gist.
Republican health care reform is being held hostage by the Byrd Rule. The Byrd Rule is completely driving the design of Republicans’ legislative health care solutions. That seems nuts. Should a workable health care solution to the Obamacare mess be conditioned on the arcane Byrd Rule? Should the Byrd Rule stand in the way of effective health care reform, when the collapsing of Obamacare makes such reform urgent? Talk about elevating form over substance.
So here’s a radical suggestion: blow up the Byrd Rule. Heck, the latest craze among the Left is to remove any Confederate statues or Confederate flags. By removing the Byrd Rule the Republicans can join the party and remove a rule named after a former member of the Ku Klux Klan! Now that should be something Democrats can get behind! But in all seriousness, half of the debate around Obamacare and the Republicans’ American Health Care Act is about the CBO’s deficit scoring. If that’s the case, how can the full repeal and the full replacement of Obamacare not meet the Byrd Rule and be able to be pushed through in reconciliation?
This argument is a bit of a slippery slope, I admit — I imagine a lot of legislation could be considered as affecting the deficit and therefore amenable to passage using reconciliation using this basis. In effect, we might be nuking the filibuster for legislation. Nevertheless, it’s worth pursuing. What Republican wants to say “we could have fixed Obamacare and gotten a cost-containing, market-based health care but we to make sure our design fit within the constraints of the Byrd Rule?” Yeah, that’ll be a real winner in the midterms. By the time a Republican candidate finishes explaining the Byrd Rule, they’ll be surrounded by a Middlebury mob.
If we blast our way through the Byrd Rule, repeal-and-replace can be symmetric with the process the Democrats used to foist Obamacare on the country in the first place: step 1 — pass the bill you want to pass, not the bill designed to satisfy reconciliation. Step 2 — write (or repeal) the regs. Done.