Could a Republican President Repeal Health Care Reform Via Reconciliation?

Mitt Romney claims that he could. In the GOP President debate earlier this week, Romney said that because the Affordable Care Act was enacted via budget reconciliation, which cannot be filibustered, it can be repealed that way.

Now, in typical Romney fashion, this is out-and-out false, because of course the Affordable Care Act was not passed via reconciliation. It required 60 votes, because the Senate parliamentarian ruled that several of its aspects — “community rating” for health plans, the antidiscrimination provisions, allowing 18-to-26 year-olds to remain on their parents’ health plans — were not related to budget matters. Thus, the ACA was passed with 60 votes, and then various budgetary cleanup provisions were passed with a simple majority through reconciliation.

This is why Kevin Drum, among others, is confident that repealing the Affordable Care Act will not be so simple. And he might be right.

But I would be willing to bet that if Romney does get elected, and the Senate turns Republican, the ACA will be repealed by reconciliation.

The current Republican Party does not believe in rules. It will subvert rules to get what it wants, and have little compunction in doing so. So this is what will happen:

1) The Republicans will put a complete repeal of the ACA into their reconciliation bill.

2) Senate Democrats will challenge it.

3) The Senate parliamentarian will rule in their favor. AND THEN:

4) Either Vice President Rubio (or Haley or whomever) will simply ignore the recommendation and rule in the GOP’s favor; OR

5) Majority Leader McConnell will have his caucus overturn the parliamentarian’s ruling; OR

6) McConnell will fire the parliametarian (as Trent Lott did a few years ago on a similar issue) and find one who will pliably rule the way the GOP wants. Maybe Hans van Spakovsky is available.

And that will be that. Republicans may not respect rules, but they do respect power — particularly when they have it. And all those Democrats who tut-tutted that one couldn’t pass health care reform through reconciliation, and that you need 60 votes, and that’s why we have to turn over the process to “Steaming Heap of Senator” Kent Conrad, will sputter about how that’s not supposed to happen. But that will be the new reality. And while the Democrats are studying that reality—judiciously, as they will—the Republicans will act again, creating other new realities, which the Democrats can study too, and that’s how things will sort out.

[Cross-posted at The Reality-Based Community]

Jonathan Zasloff

Jonathan Zasloff is a professor of law at the University of California, Los Angeles.