GOP might find killing healthcare law is not as easy as it sounds

Republicans say they could repeal President Obama’s healthcare law if the GOP wins the White House and majorities in the House and Senate next year. But that is hardly a slam-dunk proposition.

In the wake of the Supreme Court’s ruling upholding the law, Republicans have renewed their focus on repealing it. The high court’s stunning decision was a loss for conservatives, but GOP leaders contend it will help energize Republican voters in November. Some Republicans say the November elections could be their last chance to block the law.

Even if Republicans win big on Election Day, though, repealing the Affordable Care Act will be a tall order.

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Senate Minority Leader Mitch McConnell (R-Ky.) said this weekend that Republicans could repeal at least part of the healthcare law if they defeat Obama, keep their majority in the House and win control of the Senate.

McConnell said a Republican majority in the upper chamber would try to repeal the individual mandate through the process known as “reconciliation,” which requires only 51 votes — not the 60 usually needed to overcome a filibuster in the Senate.

Reconciliation has been discussed before, but it’s getting renewed attention because the Supreme Court upheld the individual mandate under Congress’s taxing power.

“Reconciliation is available because the Supreme Court has now declared it a tax,” McConnell said on CBS’s “Face the Nation” on Sunday. “They have unearthed the massive deception that was practiced by the president and the Democrats, constantly denying that it was a tax. As a tax, it is eligible for reconciliation.”

Mitt Romney, the presumptive GOP presidential nominee, has regularly cited the reconciliation process when discussing his plan to eradicate Obama’s law. 

During a debate last fall in New Hampshire, Romney said, “We can get rid of it with 51 votes.” 

Reconciliation can be a messy process — as Democrats proved when they used it to pass parts of the healthcare law after Scott Brown (R-Mass.) won the seat of the late Sen. Edward Kennedy (D-Mass.). 

Taxes are, as McConnell said, generally considered fair game for reconciliation. For example, the Bush tax rates were passed through reconciliation. 

But Martin Gold, who served as a floor adviser to then-Majority Leader Bill Frist (R-Tenn.), said the court’s tax distinction probably won’t make the difference.

“It certainly changes it politically,” Gold said. “But in the final analysis, if the Supreme Court had said this was a use of the commerce power … do you have any doubt that Republicans in the next Congress would attempt to repeal it? And do you have any doubt that they would attempt to use budget reconciliation?”

Gold, now a partner at Covington & Burling, said the biggest question is whether repealing the mandate is primarily about the budget.

Reconciliation bills must affect the deficit, and their predominant impact has to be fiscal. A bill that is mostly intended to make a policy change, but carries some incidental economic impact, isn’t eligible for reconciliation.

According to the Congressional Budget Office, the individual mandate will generate about $4 billion per year for the federal government. Although Republicans have seized on the mandate as a tax increase since the court ruled last Thursday, they have spent years attacking it primarily as an encroachment on liberty.

“I think what matters is the language of the provision, which is written as a mandate … and what the fiscal impact is,” said Sarah Binder, an expert in Senate procedure and a professor at George Washington University.

Some Republicans acknowledge that reconciliation is an imperfect option. Sen. Orrin Hatch (R-Utah) said before the Supreme Court decision that reconciliation is on the table because Democrats used it to pass the healthcare overhaul. But the top-ranking Republican on the Finance Committee said it’s not necessarily his first choice.

There is “no easy answer” on the process for repealing the law, Hatch added.

Sen. Jeff Sessions (R-Ala.), the ranking member on the Budget Committee, said after the Supreme Court’s decision that he hadn’t looked at the reconciliation option.

“I think there are things that probably could be done with reconciliation, but I am not prepared to go into detail. I haven’t really researched the details,” Sessions said.

For Republicans, the dream of using reconciliation to torpedo the law is predicated on winning a net of three Senate seats, retaining the House and winning the presidency. Then both chambers would have to pass a budget resolution that includes reconciliation instructions. Romney’s vice president would be called upon to break a possible 50-50 roll call in the Senate.

Democrats’ last budget resolution said reconciliation could be used only to reduce the deficit, Gold said, but Republicans could eliminate that requirement in their own budget. 

Then, in the Senate, once a reconciliation bill came to the floor, Democrats could challenge specific provisions. They could say, for example, that any savings from repealing certain parts of the healthcare law would only be incidental. If they won those challenges, those parts of the law would remain in place.

The Senate parliamentarian evaluates whether specific provisions meet the requirements for reconciliation. The parliamentarian’s rulings are technically only advice. The majority rarely overrules specific decisions, but majority leaders have fired parliamentarians whose answers they didn’t like.

“I think the bottom line is, it’s plausible to use reconciliation, but it’s really hard to know which provisions will pass muster,” Binder said.

— Erik Wasson contributed to this report.