Editors' pick: Originally published Nov. 21.
Republican policymakers have good reason for celebration. After six years spent trying to repeal the Affordable Care Act, including more than 60 symbolic votes to repeal in the House of Representatives, they finally have the seats necessary to pull this law out by root and branch. It's a victory that politicians on the Right have promised their constituents in four consecutive elections.
Unless, in this case, they're the dog that caught the car.
Although "repeal on day one" became a near-catechism during the 2016 primary, unwinding a system as vast as Obamacare can create complications and at least some suffering. This means more than a few traps await the new majority if they're not careful. For folks waiting to see what the new Congress is going to do, here are a few things to watch for on the road to repeal:
An early budget and reconciliation process may signal immediate repeal...
The fastest way for Republicans to repeal this bill, given a substantial Democratic minority in the Senate, will be through budgetary reconciliation. This is a parliamentary procedure that allows the majority to pass legislation without fear of a filibuster, and would let the new Congress fast-track an ACA repeal as early as Day One.
"It's an important procedural first step they have to do if they're going to go through with this," said the Brookings Institute's Molly Reynolds. "They have this template of what a repeal bill through reconciliation would look like that they used about this time last year. So they have a sense, thanks to that effort, of what parts of the law could be repealed through the reconciliation process, because there are limits of what could be achieved."
Those limits come from chamber rules that limit reconciliation to the budget process. To use it, Congress also needs a budgetary resolution, and it can only adjust fiscal priorities. While not all of the ACA has to do with spending, reconciliation could carve out enough to effectively spell the end of the law.
Using reconciliation, however, would be a very messy approach to policymaking, like pulling the breaks on a car and then waiting for it to crash. By starving the law of enforcement mechanisms and funding, then waiting for the rest of the ACA to fall apart, Republicans can effectively pass their repeal. However unless they can whip Democratic votes to make that formal, market watchers can expect a lot of (very expensive) disruption to the health care industry along the way.
So would nuking the filibuster...
A cleaner option for Republicans would be to eliminate the filibuster outright, or to threaten Democrats that they'll do so if the minority party holds up a repeal vote. Early talks of an end to the filibuster would signal that the party is getting serious off the bat about an ACA repeal, and the majority may have some leverage. In recent history Democrats have proven more responsive to threats of market and financial disruption than their counterparts. Whether that will change now that Republicans are no longer in the role of opposition party remains to be seen.
This would have the advantage of allowing the new majority a clean repeal of the ACA, something that they've promised their constituents over and over since 2010. It would also eliminate one of the last impediment to total conservative power, clearing the way for a replacement bill down the line.
Reynolds doesn't expect it to happen, though.
"It's not clear that Senate Republicans want to get rid of the filibuster entirely for all legislation," she said. "Especially… given that they have a way that they could repeal the ACA that doesn't involve getting rid of the filibuster entirely."
Early signals by some Senate Republicans indicate that this may be an accurate assessment.
The party may also delay, potentially indefinitely...
While Republicans have promised their voters a total and immediate repeal for years, that was when they were the opposition. In the majority, they'll have to account for the many ramifications of repealing this law.
And there are a lot of them.
Just for starters, campaign rhetoric notwithstanding, more than 20 million people really do have health insurance because of the ACA, most of whom are happy with their insurance. Unilaterally eliminating coverage for this population could trigger both a humanitarian crisis and a political boondoggle that alienates millions of voters with the stroke of a pen.
Other voters, even Republican supporters, often approve of major elements of the ACA even as they oppose the law itself. It is a voting bloc similar to the "keep your government hands off my Medicare" population, and one that Republicans risk alienating by disrupting benefits too quickly.
Meanwhile the insurance and health care industries will have more than a few concerns about any potential repeal. They have already once had to undergo massively expensive restructuring to comply with the law's implementation. Repeal with the threat of an uncertain replacement will create enormous expense and uncertainty throughout the industry, and restructuring to comply with a new health care law would do the same.
"If and when Republicans follow through on the repeal piece, there'll be some pretty significant political crosswinds about what to do next," Reynolds said. "For example, some Republicans would prefer to just have never adopted the law in the first place, to not have the coverage expansion. But at the same time there's a bit of you-break-it-you-own-it dynamic, which is if and when Republicans repeal the ACA they will for better or worse be on the hook for having millions of ACA be without coverage that they will have gotten under the law. There's a question of which of these pressures wins the day."
Appeasing these factions simultaneously, while managing the expectations of supporters who now expect immediate action, will not be easy. It may well take a more sophisticated approach than simple repeal would allow. Watch for talk of complicated agendas, competing priorities, and study committees as early signs of delay in repealing the ACA.
Watch for talk of 2019 as a signal that the new Congress fears electoral blowback… or that they're hoping Democrats will flip the Senate and take the blame for failing to repeal the ACA at all.
Repeal will depend on a specific vision...
Perhaps most critically, the new Congress will have to agree on its own vision for health care reform.
Although easily forgotten in the ensuing political firestorm, there's a reason that Democrats made the ACA such an early priority in the Obama administration: for decades the U.S. health care system had grown increasingly unmanageable. Depending on your perspective, many problems competed for priority, among them spiraling costs, a vast uninsured population, and a system with many fractured lines of authority
A flat return to the status-quo pre-2009 would invite all of these concerns back to the forefront.
Despite more than 60 votes to repeal the ACA, Republicans have not yet put forth a bill that would replace it. As an opposition party, they had that luxury, but as the new majority, Republicans will face much more pressure to come forth with a positive agenda. The party doesn't have one, clear vision for health care reform, however. Leaders in the House, Senate and Trump administration all have floated different proposals at one time or another.
As Reynolds explained, whether the new Congress coalesces around its policy will be a major determinant in whether "replace" becomes a reality.
"How quickly they start to come together around a replacement plan would be a pretty big thing to watch," she said. "At this point Republicans don't have a consensus around what a replace plan would look like because, up until this point, they never had to."
"That will be a really important dynamic to watch," she added. "Much of the Republican party's reputation that they've built, certainly during the Obama years, is as an obstructive party. Mitch McConnell famously called it 'the party of no,' and the transition from being an obstruction party to being a governing party could be a challenge, particularly on some issues that voters care about."
Watch for the party to endorse one particular vision, such as Paul Ryan's proposal to replace guaranteed eligibility with continuity of coverage. Watch, too, for proposals that earnestly address the holes and shortcomings of any particular model it chooses. Engaging with problems, such as the historic unworkability of high risk pools or the race-to-the-bottom effect of cross state competition, will be strong indicators of legislation that the party intends to pass.
Incomplete proposals or impossible rhetoric (such as promises to deliver Americans' favorite parts of Obamacare with none of the law's regulation) will be signs that the party has no viable replacement model, potentially either delaying repeal or signaling an intent to return to a more pre-2009, free market approach.