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Can Republicans rescind Obamacare?

They may be able to chip away at it, but they probably won't get the votes they need to get rid of Obamacare wholesale.

October 31, 2010|By Lawrence R. Jacobs and Theda Skocpol

Republican congressional candidates have declared war on the Patient Protection and Affordable Care Act — or Obamacare, as they call it. They have called for its repeal, and promised to work toward that end if elected.

But the rhetoric is largely political theater. Even if Republicans were to gain control of both the House and Senate in the upcoming election, they would not have 60 votes in the Senate to overcome a filibuster. And President Obama would surely wield his veto pen to prevent destruction of his signature legislative achievement.

Still, the knives are out, and though the foes of healthcare reform can't turn back the clock, they certainly will try to inflict whatever damage they can. The reforms passed by Congress require five years of implementation, which will involve complex decisions at the federal and state level. At every step, vociferous opponents, including virtually all Republicans and many special interest groups, will be looking for ways to undermine the reforms.

In Congress, there are two tactics that a new Republican majority might use to slow healthcare reform. One is to attach amendments to essential, non-healthcare-related legislation to delay new taxes and benefits and undercut cost-control measures (such as the new commission to monitor and control Medicare expenditures). The GOP is also likely to use committee hearings and investigations to harass Obama administration officials and prod federal and state officials to loosen rules and accommodate private insurers.

Another avenue for fighting the law will be the courts. Legal cases asking judges to rule the reforms unconstitutional are great fundraising tools for opponents, and they will probably produce the occasional legal victory as the cases work their way through the courts. But most legal scholars agree that in the end, all or most of the legislation will probably survive. As healthcare reform was designed in Congress during 2009 and 2010, its advocates chose the most advantageous legal terrain; indeed, the actual bill can be read as a conversation with the courts, complete with findings and quotes from prior judicial decisions (including those of the Supreme Court's current conservative coalition). For the Supreme Court to ultimately find the law unconstitutional would uproot a wide swath of past decisions, including established conservative jurisprudence relating to restricting abortion, extending the right to bear arms, outlawing medical marijuana and other findings.

Another avenue of attack will come — is already coming — from the healthcare industry. As the Obama administration and states draw up rules to implement the new law, they are also having to parry arguments from lobbyists over such issues as how much of the premiums collected by insurance companies are devoted to actual healthcare, as opposed to administrative overhead and CEO bonuses. Big profits are at stake, and not surprisingly, insurers as well as employers, healthcare providers and the manufacturers of medical devices and pharmaceutical products are all pressing for rules that grant them maximum discretion and generous payments. Administration officials have to decide when to play tough and when to give temporary ground — for example, making concessions that would prevent insurers or businesses from dumping people who currently have insurance before the full implementation of the reforms in 2014.

The battle also will play out at the state level, where some Republican governors are already dragging their feet on setting up the new insurance exchanges that will allow people to use subsidies and shop for insurance plans.

All of these attempts to undermine the Patient Protection and Affordable Care Act carry a potential cost. Though public opinion remains closely divided about the law as a whole, majorities of Americans approve of many of its specifics, such as rules that will stop insurers from dropping sick people, or that keep young adults eligible to stay on family insurance plans, or provide new benefits for seniors and tax breaks for businesses. Other aspects — including subsidies for lower-income Americans, measures to control rapidly rising healthcare costs and a requirement that people must purchase insurance or pay a penalty — are more controversial. Still, the more Americans learn about threats to popular parts of healthcare reform, the less they will like those threatening to go back to 2009. Republicans may soon learn that reopening years of battle over healthcare reform will play poorly with most Americans.

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