Can President Romney Repeal Health Care Reform Via Reconciliation?

He certainly claims that he can.  In the GOP President debate last night, Mitt Romney said that because the Affordable Care Act was enacted via budget reconciliation, which cannot be filibustered, it can be repealed that way.

Now, in typical Romney fashion, this is out-and-out false, because of course the Affordable Care Act was not passed via reconciliation.  It required 60 votes, because the Senate parliamentarian ruled that several of its aspects — “community rating” for health plans, the antidiscrimination provisions, allowing 18-to-26 year-olds to remain on their parents’ health plans — were not related to budget matters.  Thus, the ACA was passed with 60 votes, and then various budgetary cleanup provisions were passed with a simple majority through reconciliation.

This is why Kevin Drum, among others, is confident that repealing the Affordable Care Act will not be so simple.  And he might be right.

But I would be willing to bet that if Romney does get elected, and the Senate turns Republican, the ACA will be repealed by reconciliation.

The current Republican Party does not believe in rules.  It will subvert rules to get what it wants, and have little compunction in doing so.  So this is what will happen:

1)  The Republicans will put a complete repeal of the ACA into their reconciliation bill.

2)  Senate Democrats will challenge it.

3)  The Senate parliamentarian will rule in their favor. AND THEN:

4) Either Vice President Rubio (or Haley or whomever) will simply ignore the recommendation and rule in the GOP’s favor; OR

5)  Majority Leader McConnell will have his caucus overturn the parliamentarian’s ruling; OR

6)  McConnell will fire the parliametarian (as Trent Lott did a few years ago on a similar issue) and find one who will pliably rule the way the GOP wants.  Maybe Hans van Spakovsky is available.

And that will be that.  Republicans may not respect rules, but they do respect power — particularly when they have it.  And all those Democrats who tut-tutted that one couldn’t pass health care reform through reconciliation, and that you need 60 votes, and that’s why we have to turn over the process to “Steaming Heap of Senator” Kent Conrad, will sputter about how that’s not supposed to happen.  But that will be the new reality.  And while the Democrats are studying that reality—judiciously, as they will—the Republicans will act again, creating other new realities, which the Democrats can study too, and that’s how things will sort out.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

18 thoughts on “Can President Romney Repeal Health Care Reform Via Reconciliation?”

    1. They could — but it’s better for them just to do this, so if the Democrats ever regain the majority they will tie themselves in knots through GOP procedural wrangling. If you just got rid of the filibuster, that would be too easy even for Democrats.

  2. Couldn’t the GOP keep it simple and just abolish the filibuster if they have 51 votes? Day 1?

    Yes and the converse also applies- we could have a single-payer plan if the Dems would be as audacious.

  3. I disagree with Zasloff in only one respect. Romney will have no incentive to destroy the ACA, because it is the only thing keeping the private insurance model alive. Instead, he will viciously attack the Senate Democrats for refusing to repeal ACA. If the Rs take both houses and the Presidency, the filibuster will disappear-for everything BUT the ACA.

  4. Wait a minute, you think Romney, whose own initiative Obamacare was based on, who the White House consulted with in about the details, and who flatly refuses to admit his own law was a mistake no matter how much it hurts him, is going to be part of repealing Obamacare?

    Look, I know that, no matter who gets the Republican nomination, you’re going to accuse them of being to the right of Attila the Hun, but believing your own propaganda is generally a mistake. Electing Romney is the most certain way, short of reelecting Obama, of preserving Obamacare, right through the inevitable crash and burn.

    1. Brett,

      Romney’s made this a singular goal of his in debate after debate. If he blows this on his first day, the Republican base will immediately go on the attack. And as David Frum has memorably said, The Republican leadership fears its base.

      I won’t say you’re wrong because we have to see what happens. But your incredulity is not warranted in the least at this point. Jonathan’s point is a highly likely scenario, based upon current and past statements and actions Republican leaders have taken in the past ten to twenty years.

    2. Romney clearly claimed he would seek this. It may be that he’s lying (and I think that’s probably true), but it does not follow that by taking Romney at his word, Jonathan is unfairly maligning Romney.

      1/10 on the trolling scale for this one, Brett.

    3. Brett,
      Fair comment, but I think you misunderstand the nature of the Presidency. Presidents are not free to implement their preferred policy conclusions. They must “dance with those who brung them,” as the Texans are reputed to say. I only disagree with your first sentence in that the question is intended as a rhetorical one. I view it as a real question, to which the answer is “yes.” Yes, Mitt Romney, “whose own initiative Obamacare was based on, who the White House consulted with in about the details, and who flatly refuses to admit his own law was a mistake no matter how much it hurts him,” would repeal Obamacare if his funders wanted him to do so. But they do not, so he will only pretend to repeal Obamacare. And this would be equally true of a President Perry or a President Gingrich. (Michelle Bachmann might be different.)

      The take-home lesson: Presidents are constrained. From your point of view, President Obama is far less scary than Dictator Obama. From my point of view, President Romney would be far more scary than Dictator Romney.

    4. No way…..the day Romney takes office with a new republican congress this bill will be passed before he gets back to the White House after his trip down Penn. Ave. And he will sign it and make a big deal out of it. ALL REPUBLICANS ARE ALIKE NO MATTER WHAT THEY SAY. He will be just like W and the rest of them.

  5. but believing your own propaganda is generally a mistake.

    I think you mean “believing Romney’s propaganda.” How odd that you should criticize Zasloff for casting Romney as a right-wing nut, when Romney himself has gone to so much trouble to do so.

  6. Brett’s leaping to two assumptions here. First, he assumes that Romney was sincere when he was in his “moderate Massachusetts governor” mode, and that he’s lying now when he’s in his “right-wing GOP presidential candidate” mode. Second, Brett assumes that once elected, Romney will cease lying and go back to his true (earlier) self.

    My assumption is that Romney will just do and say whatever seems most likely to further his own interests at any given moment. That behavior wouldn’t stop at the door of the Oval Office. If President Romney thought he would benefit from a repeal of ACA, he’d sign the “repeal” bill. If he thought he’d benefit by letting it stand, he’d veto the repeal.

    If he thought he’d benefit by superficially tinkering with it and claiming to have “fixed” the unconscionably unconstitutional parts of the law, he’d do that, and then claim to have saved health care reform by turning evil ObamaCare into good RomneyCare.

  7. Given the givens, Zasloff’s expectations of Republican actions pin the tail on the rogue bull elephant.
    The best write up I’ve seen, regarding the Republican shredding of our political norms is Paul Waldman’s take:

    http://prospect.org/cs/articles?article=yes_they_can

    If anybody has better linkage than that, please share…
    As this issue is cogent, contemporary, and cutting; and ought to avoid all memory holes.

    Now, all that being said which of Zasloff’s givens ought to be ungiven?
    That Romney will be the nominee, and that he can win the presidency.
    That ain’t gonna happen in total my friends…

    Romney is indeed Obama-lite on shapeshifter stims.
    And as such he is no more palatable to the hard right than was McPain…
    And he is also no more palatable to Democrats than Obama currently is.
    Why would Dems switch to Romney? There is no compelling reason to.
    Why would Limbaugh’s voting block enthuse and embrace Romney? There is no compelling reason for them to.

    Yes, Romney will pick himself a sexy pot of tea for his Veep…
    But he is going to have to shapeshift hard to the middle to win the general.
    He’ll have to moderate on healthcare, which will alienate and shed off more of his right wing support.

    In short, the dynamics are against Romney’s election.
    There is no flop-hole for Romney to flip into.
    There will be a lot of sound fury in the months ahead…
    But his candidacy is DOA.

    The best bet for Romney is 2016.
    But I’m not sure his looks will hold…

    1. Thanks for the link. It is a must read, not that it is anything we didn’t know already.
      What the Dems should have figured out long ago is that pressing the envelope to do what your base wants gets votes. The GOP has been riding high on that principle for decades.

  8. Obama lite is a pretty good description of Romney, but that won’t keep him from getting the nomination, if the right can’t unite quickly on one candidate, with the party establishment (Decidedly NOT right wing.) backing him. He’d have an uphill slog to win the general election, but the GOP establishment would rather lose with a reliable hack, than win with somebody they don’t control. Losing control of the party is their worst case scenario, not losing elections.

  9. koreyel says:

    “Given the givens, Zasloff’s expectations of Republican actions pin the tail on the rogue bull elephant.”

    Jonathan is the sort of ‘centrist liberal’ who won’t accept that the GOP has profited immensely by obeying only those rules which are actually enforced. Frankly, Jonathan, for a law professor you’re rather naive.

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