PHILADELPHIA—We did not get a firm timeline for the Obamacare repeal-and-replace process at this week’s GOP retreat. We also did not get firm decisions about what elements would be included in which bill. We did, however, get some more metaphors.
“We’re the ambulance crew that’s showing up at the scene of the wreck,” Rep. Greg Walden, chairman of the House Energy and Commerce Committee, told reporters on Thursday. As leader of a major committee with jurisdiction over health policy, Walden was flooded with inquiries the minute he approached the media area. “There are people bleeding, there are people not breathing, and there are people just barely injured. And some not injured at all.”
Beyond sharing his macabre emergency responder metaphor—a fitting analogy for the subject area, unlike Sen. Lamar Alexander’s preferred infrastructure imagery—Walden did offer some hints as to how this would proceed, with details to be determined. As he and other Republicans have been insisting, there’s not going to be a single, lengthy repeal-and-replace bill. There will be “two buckets”—metaphor ahoy!—and they’re not a repeal bucket and a replace bucket. They are (1) whatever elements of repeal and replace can be included in a reconciliation bill, and (2) everything else.
They’ll be able to take care of the first part easily enough, which is to say not very easily. It’s the second bucket where the vote-counting becomes difficult.
The items in the reconciliation bill—which isn’t subject to filibuster in the Senate—must pertain directly to spending and revenue without increasing the deficit. In other words, it’s not the bucket for eliminating the regulations enacted into law under the Affordable Care Act. When the GOP did its “test run” for repealing the law in 2015, it didn’t include any replacement elements—it just eliminated major tax and spending elements, like the Medicaid expansion, exchange subsidies, and employer and individual mandate. Senate Majority Leader Mitch McConnell had said earlier this year, when “repeal and delay” was thought to be the strategy, that this year’s reconciliation bill would look much like the “test run” bill. That strategy appears to have changed as Republican senators, and President Trump himself, thought it would be wiser to try to include what replacement elements they can in the reconciliation bill.
If they repeal the ACA’s major spending planks while leaving some of Obamacare’s taxes on the books—more on that in a minute—it would leave Republicans with some money for replacement elements. “If you look at the reconciliation bill that we’ve passed out of the House and the Senate previously,” Rep. Diane Black, interim chairwoman of the House Budget Committee, said Wednesday, “you’ll see in there—depending upon whether [it’s scored with dynamic or static scoring]—anywhere from $300 billion to $500 billion in that bill that might help us to pay for some of those solutions that we see.”
Walden wouldn’t discuss any decisions that have or haven’t been made, but he tossed out some replacement elements under consideration. “We’re trying to gather all those ideas up and then we’ll figure out what best can go in” the reconciliation bill, he said. “We’d like to do things like health savings accounts. We’d like to do refundable tax credits to move people into affordable health care that could come about on an improved health exchange. So we’re looking at those.’”
But the math has to add up, and adding it up requires answering some difficult questions for Republicans. For example: Do they leave these taxes to be, when there’s an opportunity to repeal them? Some Republicans ushering this process through want revenue on the books to allow space for a replacement, and then to throw those specific taxes into the great mixing bowl of comprehensive tax reform later in the year. And then there’s the minor matter of whether they want to toss a highly controversial overhaul of Medicaid into the reconciliation package, which some Republican governors won’t be too thrilled about. Another issue: how to structure this all in a way that doesn’t collapse the U.S. health insurance industry. Ideally.
That leaves the other bucket of policy changes—repealing, replacing, weakening, and not enforcing Obamacare’s regulations. Legislative reform is the long-term answer, but administrative nonenforcement seems like the only readily available option.
Republicans are anxious for would-be Health and Human Services Secretary Tom Price, who insisted during his confirmation hearings that he wouldn’t have much administrative authority to set policy, to use his administrative authority to set policy. Price and Centers for Medicare and Medicaid Services administrator nominee Seema Verma have “got incredible powers because the Affordable Care Act gave them incredible powers,” Walden said.
Administrators can narrow or not enforce the scope of regulations, whether that means weakening what treatments are counted as essential benefits or issuing more exemptions from the individual mandate. But they’ll need legislation to get the apparatus off the books or replace it with their own.
It’s unclear how, or when, these policy bills will be packaged and brought to the floor, but hearings are about to begin. Walden announced Thursday that he would be introducing a bill to “reaffirm” Republicans’ commitment to covering those with pre-existing conditions, the signature regulatory accomplishment of the Affordable Care Act.
Walden on Thursday was especially careful not to disclose the specifics of his pre-existing conditions bill. Those details are important. It’s difficult to guarantee health coverage for those with pre-existing conditions without, say, an individual mandate to balance out the risk pools, and Republicans have made it crystal clear that they intend to blast the individual mandate into outer space. One option Republicans have floated is “continuous coverage,” a provision barring any insurer from discriminating against those with pre-existing conditions so long as they don’t allow their insurance to lapse. (If they do allow their insurance to lapse, well, they’ll get to experience the glories of the free market, and they’ll get to experience them good and hard.)
As Walden was trying unsuccessfully to escape a mob of reporters, I asked him if continuous coverage was the catch to his forthcoming reaffirmation of support for those with pre-existing conditions. “We’re saying that we will have a system in place that makes sure people with pre-existing conditions continue to get coverage,” he said. “There are lots of options to how you do that. You’ll see some of that coming forward later.”
Say Republicans did decide to go the continuous coverage route and try to pass that legislation, or say they wanted to eliminate, or trim, the essential benefit requirements, community ratings, or any of the many, many other policies in the Affordable Care Act. Then there are new reforms they want to introduce, such as allowing insurers to sell across state lines. How would Republicans get the votes for that bill, or those bills, through a Senate filibuster?
“This insurance reform—shoring up the insurance markets—will go through regular order” and not reconciliation, Rep. Michael Burgess, chairman of the Energy and Commerce Committee’s Health Subcommittee, said Thursday. “So that means, yeah, 218 votes in the House, and you’ve got to get 60 votes in the Senate.”
I asked him if there was a strategy in place for getting 60 votes in the Senate for any of these bills.
“I’m not the whip,” Burgess said. “I’m just a policy guy.”
Rep. Steve Scalise is the whip in the House. The best he had to offer was some of the usual talk about how Trump would use the “bully pulpit” to pick off the necessary Senate Democratic votes. Sort of like how President Obama used the “bully pulpit” to get the many, many Republican votes he collected over the years.
The GOP held its closed-door retreat planning session on health care Thursday afternoon. By Thursday night, an audio recording of the session had leaked. It presented a GOP far more worried about this process than its members’ public posture would suggest.
“We’d better be sure that we’re prepared to live with the market we’ve created” with repeal, Rep. Tom McClintock said, according to the Washington Post. “That’s going to be called Trumpcare. Republicans will own that lock, stock, and barrel, and we’ll be judged in the election less than two years away.”
McClintock is correct on both counts: Republicans will own the consequences of whatever legislation and administrative action they take on health care; and, yes, anything bad that happens in the field of health care from then on will be known as “Trumpcare.”
Republicans might be regretting their health care name games of the past 25 years, first with “Hillarycare” and then “Obamacare.” While we were speaking with Burgess, a fellow reporter asked a question about “Obamacare,” but was cut off midsentence.
“Just call it the Affordable Care Act,” Burgess said, “because that’s what it really is.”
Never, ever have I heard a Republican legislator insist that someone use “the Affordable Care Act” instead of “Obamacare.” It wasn’t a metaphor, but it was good symbolism all the same.