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Hail to the Chief (Roberts, that is): Some thoughts on the legislative implications of today’s ruling

- June 28, 2012

Chief Justice John Roberts put it best this morning.

“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”

And so the battle over the future of health care reform goes back to Capitol Hill (as if it ever left).  I thought I’d offer a few more thoughts after Eric Patashnik’s on the legislative implications of today’s decisions.

1.  Today’s decision takes the wind out of the sails of conservatives’ constitutional mantra against the Affordable Care Act.  Of course, some conservatives will keep leveling this charge against the ACA.  As Sen. Rand Paul said this morning, “Just because a couple [of] people on the Supreme Court declare something to be ‘constitutional’ does not make it so.”  (Dred Scott would concur.)  But in some ways, the Republicans’ precise arguments against the ACA are immaterial: Their legislative efforts to repeal and/or replace the Act will go forward with or without the constitutional window-dressing.

2. Expect to see continued GOP efforts to defund the law’s benefits and programs.  Republican efforts to defund health care reform, however, are not quite as straightforward as they may seem.  First, much of the funding for implementing the Act was actually appropriated in the Act itself (or provided for via transfers from other programs).  CRS helpfully spells out the roughly $100 billion in spending included within the Act here.   Only some of the portions of the Act were to be funded through future “discretionary” appropriations, as detailed here.   So GOP efforts have to be tailored to the narrow range of authorized– but not yet funded– ACA programs.  The alternative route–  which the House GOP has been following for the fiscal year 2013 spending bills now in play– is to aim cuts at the operating budgets of the bureaucracies that will implement the law (namely, HHS and the IRS).   By preventing bureaucrats from hiring or paying employees (and maintaining their computers and buying them pencils), Republicans could in essence do an end run around the ACA’s already appropriated funds.  (What happens to those appropriated funds if HHS can’t hire employees to spend them?  Good question.)

3.  Expect Senate Democrats to keep blocking House GOP efforts to defund health care.  That of course is already happening, as the Senate Appropriations Committee has batted back Senate Republican efforts to defund the ACA through the IRS and HHS budgets.  The Hill details some recent squabbles here.

4.  To state the obvious, the outcome of these legislative battles will be affected by the outcome of the November elections.  Indeed, if spending for fiscal year 2013 (which begins October 1, 2012) drags out past the election and past the lame duck session, it’s hard to predict how successful the current defunding efforts will be.  Certainly a Democratic Senate and a re-elected Obama would continue to resist efforts to defund the law.

5.  More generally, to do real damage to the future of health care reform, Republicans need to hold the House, and win the White House and (presumably) with it, the Senate.  Even then, however, they will find it hard to repeal and replace, assuming that Senate Democrats exploit an effective filibuster against any such effort to deny the GOP the sixty votes they would need to succeed via the regular legislative process.  My hunch is that today’s decision will be critical in bolstering Senate Democrats’ back bone to defend the law, even if they were to find themselves in the minority.   Because most of the law’s popular insurance coverage protections kick in only in 2014, the window of opportunity for the GOP will be widest in 2013.  After 2013, the GOP’s road to repeal would get even steeper.

6.  Finally, reconciliation. I think the bottom line is that repeal and replace through reconciliation will be harder than Romney and the GOP let on, but not impossible.  The devil is of course in the details.  If a Republican Congress can pass a budget resolution that includes reconciliation instructions to committees, then reconciliation under a GOP president provides a potential majority-vote path to overturning portions of the health care law.  The path is “potential” because the bill’s provisions would have to avoid or survive “Byrd Rule” challenges in the Senate.  In short, the Byrd Rule prevents provisions that are “extraneous” to budget targets from being included in reconciliation– unless proponents can muster sixty votes to waive a Byrd Rule challenge or to reject a point of order under the rule.  “Extraneous” generally refers to provisions that do not produce a change in spending or revenues, but there are actually six definitions of “extraneous” in the Budget Act– including one that prevents inclusion of measures that would increase the deficit for a fiscal year beyond those covered by the reconciliation bill.  (For an overview of the limitations of reconciliation’s majoritarian features, I would read Bill Heniff’s excellent piece.)  Assuming that a Republican Senate would have far fewer than sixty votes, whether or not particular elements of a GOP reconciliation bill would be able to survive Byrd Rule challenges would depend ultimately on the parliamentarian’s interpretations of the rule and the potentially offending provisions.  We know that CBO scored the entire ACA as saving over $200 billion, but how particular provisions of a GOP bill would be scored remains of course to be seen.  And not all of the ACA provisions of course have fiscal effects.  That’s why– as always– the devil is in the details.