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September 21, 2017

ACA repeal is dead for this month. Here's why it could come back next month or next year.

Daily Briefing

    By Josh Zeitlin, Editor

    This story was updated on September 26, 2017.

    You may have heard that the GOP faces a Sept. 30 deadline to repeal the Affordable Care Act (ACA) and overhaul Medicaid with just 50 votes.

    Proponents of the Graham-Cassidy health reform bill pointed to that looming deadline to urge lawmakers to vote on their legislation before Oct. 1. (GOP leaders on Tuesday decided not to vote on the measure this week).

    One problem with that deadline claim, though. It's not quite true.

    Yes, Senate parliamentarian Elizabeth MacDonough has ruled that the current reconciliation authority (created under the FY2017 budget resolution), which would allow the GOP to pass ACA repeal with a filibuster-proof majority, runs out on Sept. 30.

    But if Republicans want to abandon their efforts after that date to repeal the ACA with 50 votes, that is a political choice, not a process necessity. Budget experts told the Daily Briefing that if the GOP still wants to advance their repeal effort after Sept. 30, they have a variety of ways to make that happen—and Politico on Monday reported that Republicans are indeed weighing their options.

    Sarah Binder, a professor of political science at George Washington University, told the Daily Briefing, "There is still time for the GOP Congress to write a budget resolution for FY2018, whether they do it before Oct. 1 or later on. So long as they can agree to a budget resolution with instructions, they can keep trying [on ACA repeal]."

    Here's how that could work

    Under Senate rules, to keep the option of 50-vote ACA repeal going after Sept. 30, Binder said a FY2018 budget resolution would need to provide reconciliation instructions to four committees of jurisdiction for such a health care reform bill:

    • The House Energy and Commerce Committee;
    • The House Ways and Means Committee;
    • The Senate Health, Education, Labor and Pensions (HELP) Committee; and
    • The Senate Finance Committee.

    GOP leaders can include reconciliation instructions for those committees if they want to do so, and some key lawmakers are urging that approach. Sen. Lindsay Graham (R-S.C.) on Sunday said he would not "vote for a budget resolution that doesn't allow the health care debate to continue." Graham on Tuesday said, "We're on path to pass Graham-Cassidy-Heller-Johnson. It's not if but when."

    If the FY2018 budget resolution does not provide reconciliation instructions to those four committees, that most likely will represent the end of the GOP repeal effort for this Congress. Still, even then, experts say Republicans could call a mulligan of sorts:

    • Senate Republicans could later pass a new, revised budget resolution for FY2018, which former Senate parliamentarian Alan Frumin told the Daily Briefing was "very rare, but in order." Frumin said it unclear whether "the first reconciliation process must be completely finished before the adoption of another budget resolution with reconciliation instructions," although he said that was "at first blush, the most institutionally defensible answer." According to Vox, this could also work by passing an FY2018 budget resolution with one set of reconciliation instructions and then passing a FY2019 budget resolution sometime next year—a scenario Sen. John Thune (R-S.C.) floated this week.

    • Senate Republicans could pursue less sweeping (but still impactful) ACA changes that might not require reconciliation instructions for all four committees. As Steven Smith, a professor of political science at Washington University in St. Louis, told the Daily Briefing, "It would be possible to gut the ACA by extracting just parts of the program (say, eliminating the mandate)."

    • Senate Republicans could employ the so-called "nuclear option" and overrule the parliamentarian to forge ahead with 50-vote repeal, although it is highly unlikely they would do so. Josh Ryan, an assistant professor of political science at Utah State University, told the Daily Briefing, "[Senate Majority Leader] Mitch McConnell has said repeatedly there is no way they will invoke the nuclear option and I think that's probably true ... Neither party has an appetite for that right now."

    • It is possible that Republicans could include a provision in the FY2018 budget resolution "extending the 'life' of the current ACA repeal effort," Gregory Koger, a professor of political science at the University of Miami, told the Daily Briefing. Koger said the FY 2018 resolution "could include some language acknowledging that ... the House already passed an ACA bill, and authorizing the Senate to continue its efforts to pass it as reconciliation." Koger said he is not sure whether the parliamentarian would rule that such language adheres to Senate rules.

    If Republicans maintain control of the House and Senate in the 2018 elections, they could also try again in a future fiscal year to pass ACA repeal with 50 votes. "Perhaps if they win more seats in the Senate, and keep their House majority they would presumably have more room to work with," Ryan said. "That's a big if, though, and they probably think (correctly in my view) that the longer Obamacare remains law, the tougher it will be to repeal."

    What about tax reform?

    One reason why observers have commonly assumed the FY2018 budget resolution won't provide for repealing the ACA is that Republicans have said they want to use next year's reconciliation instructions for a different purpose: tax reform.

    But it's actually possible that Republicans could use FY2018 reconciliation authority to pass both tax reform and health care reform. Senate Finance Committee Chair Orrin Hatch (R-Utah) last week said Republicans might go that route, although he said it wouldn't be "easy."

    Under a single budget resolution, the Senate can pass only one reconciliation bill related to revenue, one related to spending, and one related to debt limit laws. Those could all be addressed in one bill, or in separate bills. Things get tricky because health care reform includes both revenue and spending changes, and tax reform includes revenue changes.

    Lawmakers could dodge that issue in a couple of ways:

    • They could combine tax reform and ACA repeal into one big reconciliation bill, as Democrats did in 2009 with the ACA and student loan reform;

    • They could theoretically put all the revenue parts of ACA repeal and tax reform into one bill and all the other parts of repeal into a separate bill, although that could run up against the requirement that reconciliation bills not add to the deficit outside the 10-year budget window; or

    • As noted previously, they could pass one budget resolution with one set of reconciliation instructions, pass health reform or tax reform, and then pass another budget resolution to pursue the remaining policy goal.

    As Hatch said, doing tax reform and ACA repeal together wouldn't be easy. "Combining those two big ticket items is going to make it next to impossible to find an acceptable compromise," Utah State University's Ryan said, although he noted it is "possible." The GOP also might be less likely to pursue health reform as the 2018 midterm elections approach, Andrew Prokop writes for Vox.

    The bottom line

    Those parliamentary gymnastics aren't really necessary. At the end of the day, the GOP could still give itself the option of doing health reform, tax reform, or both after Sept. 30 if it so chooses: It would just have to pass a FY2018 budget resolution (which couldn't be filibustered) that provides the right reconciliation instructions.

    Health reform is hard. Tax reform is hard. If the GOP chooses, it can treat Sept. 30 as its hard ACA repeal deadline. If the GOP chooses, it could pursue ACA repeal after Sept. 30. It is their choice—but it is a choice.

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