Who will own the Obamacare “replacement”?

If you answered “the Republicans,” you are right. If you answered the Senate parliamentarian, you are crazy.

It makes no sense, therefore, for the Senate parliamentarian to have a say in the replacement of Obamacare. Yet, congressional Republicans are effectively granting the parliamentarian a veto. In so doing, they are ensuring that the Obamacare replacement will be sub-optimal at best and, more likely, disastrous.

Here’s the background. Republicans won’t have 60 votes with which to pass an Obamacare replacement. Therefore, they plan to proceed through “reconciliation,” which does not require a super-majority.

No one seriously disputes that reconciliation can be used to repeal Obamacare’s individual mandate (by making the penalty zero), the employer mandate, the subsidies to insurance companies, the Medicaid expansion, and the tax increases. After that, things become murky.

Under the Byrd rule, the reconciliation process is to be used only to pass legislation whose primary purpose is “budgetary.” The Republican leadership apparently accepts the idea that only taxing and spending provisions, and perhaps provisions that are necessary and proper for carrying into effect taxing or spending provisions, qualify for reconciliation.

This interpretation reads out of the reconciliation process key elements that are needed to formulate legislation that does more than patch up Obamacare. It reads out of the process the overturning of the notorious Obamacare regulations that do much of the Act’s damage.

But there is an alternative view of what is possible through reconciliation. Under that view, reconciliation applies not just to tax or spending provisions, but also to regulations whose main effect is on taxing and spending.

It is also possible, and I think correct, to view the core of Obamacare — the mandate, the subsidies, the insurance policy requirements, etc. — as a single, integrated mechanism. Under that view, it makes little sense to divvy up its component pieces into spending/taxing provisions and other provisions. Everything is part and parcel of the whole.

Republicans should take the view that Obamacare can be replaced entirely through the reconciliation process. They should go back to the drawing board and come up with a free-standing replacement, get it through the House, and bring it to a vote in the Senate under reconciliation.

If, after the Democrats raise a point of order, the parliamentarian sides with them, they should vote to reject the parliamentarian’s ruling which is advisory only, not binding. This they can do without a super-majority.

Here’s what Republicans should not do. They should not pass Speaker Ryan’s replacement legislation. It effectively maintains the Obamacare subsidies (in the form of tax credits) while removing the subsidy-funding mechanism (the individual mandate).

This approach seems certain to hasten the Obamacare death spiral. When that happens, Republicans, not the Senate parliamentarian, will own the consequences.

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