What now for Republicans as they try to figure out a way forward toward repealing ObamaCare? Simple: Do what you promised. Repeal it. The question is, how?
Based on what I’ve been hearing and reading from the grassroots activists who’ve worked with Tea Party Patriots over the last seven years to help repeal this odious law, here are some suggestions on a path forward.
The bill repealed much (but not all) of ObamaCare’s infrastructure. Though it left in place Title I of ObamaCare — the mandates on insurance companies — it did so only because, knowing in advance that the president would veto the bill, the Senate Republican leadership chose not to test the parliamentarian’s thinking on whether or not community rating, guaranteed issue, and essential health benefits could be shown to have a direct impact on federal spending. (Hint: They do.)
Nevertheless, the bill passed both houses with strong GOP support. It offers a good starting point for a second attempt at repeal in the Senate. Despite what we heard Tuesday from Sens. Shelley Moore CapitoShelley Wellons Moore CapitoRepublicans struggle to save funding for Trump's border wall White House looks to rein in gas prices ahead of busy travel season Bipartisan success in the Senate signals room for more compromise MORE (R-W.V.) and Lisa MurkowskiLisa Ann MurkowskiCongress should reject H.R. 1619's dangerous anywhere, any place casino precedent Democratic frustration growing over stagnating voting rights bills Graham emerges as go-to ally for Biden's judicial picks MORE (R-Alaska), there’s no reason anyone who voted for the bill in 2015 shouldn’t vote for the same bill again — politically, in fact, flip-flopping on that vote would be risky.
Anyone who did so wouldn’t erase the earlier vote to repeal, so would not “protect” themselves politically from anyone making a voting decision on the basis of a member’s support or opposition to ObamaCare. On the other hand, anyone who flipped to the “no” position would risk losing the support of base voters angry that the member did not keep his or her promise to repeal ObamaCare.
Next, vote on a second amendment — an amendment that strikes Title I of ObamaCare, the insurance mandates. These are the heart of the law’s architecture, and they are what have driven premiums through the roof. Until these regulations are repealed, it is not proper to say that ObamaCare has been repealed.
Perhaps the amendment would be challenged under the Byrd Rule, which requires that all provisions of a reconciliation bill must have the primary effect of raising revenue or cutting spending. Certainly, these three mandates on insurance companies cost the U.S. Treasury billions of dollars every year, because ObamaCare establishes subsidies that are tied to premium costs. As premiums rise for the subsidized, so do the subsidies. A clearer connection cannot be imagined.
But if for some reason the parliamentarian rules against the amendment or the amendment fails to get a majority, move to a third amendment — Sen. Ted CruzRafael (Ted) Edward CruzSenate nearing deal on defense bill after setback Congress's goal in December: Avoid shutdown and default Overnight Defense & National Security — US, Iran return to negotiating table MORE’s (R-Texas) “Consumer Freedom” amendment, which would allow any health insurance carrier that offers at least one ObamaCare-compliant plan in the exchanges to also offer non-compliant plans that could have fewer features at a lower cost.
And don’t add any extraneous language requiring insurance companies to maintain just one risk pool for all their insured — that defeats the very purpose of the Consumer Freedom amendment. (Hint: We see through these games that would lead to fake repeal, and we are over the games.)
What could induce reluctant senators to vote for full repeal? It’s simple. Remove their illegal special exemption. President Trump could, with the stroke of a pen, force members of Congress and their staffs to live under the law the way they were meant to — the way the law actually requires, by simply directing the Office of Personnel Management (OPM) to reverse its 2013 ruling that created the illegal special exemption in the first place.
Because the special exemption was created by President Obama’s fiat, it could be undone by President Trump’s fiat, with no need to pass a pesky little bill through the Congress. The president could announce tomorrow that he will direct OPM to overturn that special treatment effective Oct. 1, the first day of the new fiscal year. That would put Congress on notice, and give them just enough lead time to pass legislation repealing ObamaCare before the deadline.
That is the president’s trump card, and it’s time he played it.
Jenny Beth Martin is president and co-founder of Tea Party Patriots.
The views expressed by contributors are their own and are not the views of The Hill.