Trumpcare began Thursday wheezing and disoriented, a half-dead, bedridden bill that had become unrecognizable to its own parents.
Then, the Senate Parliamentarian took a sledgehammer to its rib cage.
Early Thursday afternoon, the parliamentarian ruled that waivers allowing states to opt out of Obamacare’s protections for people with preexisting conditions — and the law’s essential health-benefits requirements – violated the rules of budget reconciliation, and, thus, required 60 Senate votes to be enacted.
This is huge. Without those waivers, Trumpcare would have been buried back in March. Paul Ryan was only able to get Obamacare repeal out of the House by placating conservatives’ deregulatory demands: The Freedom Caucus had no interest in “Obamacare lite” until those waivers were added to the bill.
And the Senate’s tea-party faction has demanded even more drastic measures to erode the Affordable Care Act’s regulations. Now, any attempt to expand the liberty of insurance companies to discriminate against sick people — or to sell cheap plans that don’t actually protect enrollees against serious illness — appears doomed.
At this point, the only way for Republicans to roll back the ACA’s individual market regulations would be to overrule the parliamentarian.
But such a move would change lawmaking in the United States forever, and in a manner that might be detrimental to the conservative movement’s long-term goals. Right now, Senate majorities can only pass major legislation with a 50-vote majority if such legislation does not increase the budget deficit ten years after it is enacted. All other bills are subject to a filibuster by the minority party, and, thus, a de facto 60-vote threshold. This gives the party that wishes to reduce the size of government a structural advantage — one Mitch McConnell has shown little interest in forfeiting. But if Senate Republicans establish the precedent that majorities can simply ignore the parliamentarian, then the next Democratic-controlled Senate could, ostensibly, pass single-payer health care with 50 votes, no matter the impact on the deficit.
Maybe repealing Obamacare is important enough to conservatives to justify that risk. But it’s far from clear that Republicans will ever be able to find 50 Senate votes for a major overhaul of the law. And the last thing McConnell wants to do is neuter the parliamentarian and then fail to repeal Obamacare, anyway.
So, let’s assume that the tea party’s deregulatory dreams are dead. That means McConnell’s current strategy for keeping Trumpcare alive just got a whole lot more dangerous. As of this writing, the majority leader’s plan is to pass “skinny repeal” — a package of Obamacare’s least popular provisions — through the Senate this week, and then, to have Senate and House leaders hash out a more comprehensive version of health-care reform in a conference committee. This was always a bizarre and hazardous gambit.
The provisions that “skinny repeal” eliminates — the individual mandate, employer mandate, and medical device tax — may all be unpopular, but if the bill were actually passed into law, it would be a political disaster for the Republican Party. Without the individual mandate, the risk pools in Obamacare’s individual marketplaces will grow even sicker. Or, at least, so insurance companies believe. And for GOP incumbents, that will be the only thing that matters: If skinny repeal becomes law, insurers will defensively jack up their premiums. Consumers will feel the pain within weeks. And, having passed a health-care bill, Republicans will no longer be able to blame that pain on Obamacare.
According to the Congressional Budget Office, repealing the individual mandate without a replacement would boost premiums by 20 percent, while increasing the ranks of the uninsured by between 15 and 16 million. Some of those individuals would be going without insurance solely because they’re no longer subject to a mandate — but others will “voluntarily” opt out of insurance simply because the increase in premiums will leave them unable to afford coverage.
As Texas senator John Cornyn has made clear, the point of passing “skinny repeal” isn’t to pass skinny repeal; it’s to move the process to a conference committee, and give the GOP leadership more time to pressure and bribe fence-sitting senators. But if that conference committee will be powerless to roll back Obamacare’s regulations on insurers — or, even to defund Planned Parenthood, as the parliamentarian has previously ruled — it’s hard to see how House conservatives ever get onboard with a broader repeal bill. And if they don’t, a Senate-approved, skinny repeal bill will just be sitting there, ready to become law, any time a majority of House Republicans decide that they’d rather repeal a little of Obamacare than none of it.
All of which is to say: McConnell probably can’t get “skinny repeal” through the Senate without the votes of Republicans who don’t want the House to actually pass it. But after the parliamentarian’s ruling, there is no reason for anyone to be confident that Paul Ryan’s caucus wouldn’t.
Who knew trying to overhaul one-sixth of the American economy over lunch could be so complicated?