So the election is finally here. What do we know about the fate of “Obamacare?”
As I write this on Sunday, Nov. 4 – not much. But here are the four main scenarios to think about. When we know the results, we’ll explore more in depth.
At this writing, the presidential race is considered very close (with each side predicting that its guy will win.) The conventional wisdom is that the Senate is likely – not certainly, but likely – to remain in Democratic hands. But we’ll look at what would happen if the Republicans pull out a narrow win.
All the scenarios I write about here assume that the House remains Republican – that’s pretty much a given. Should the entire politicoscenti be wrong about that (highly unlikely) and it goes Democratic, that would mean more support for President Barack Obama’s health law, if he’s re-elected, and more obstacles to repeal if Mitt Romney wins. But, I repeat, it’s unlikely.
So read through the other four scenarios – and I put the most interesting and least understood last.
Scenario 1: President Obama wins. The Senate is Democratic, the House Republican.
Obamacare survives. It will be implemented in 2014 – probably not without bumps and challenges so you will have plenty to write about. But the fighting won’t be over. There are at least two legal challenges to the law out there (not counting the lawsuits over contraception policy – but that’s a peripheral issue and wouldn’t bring down the whole law). Republicans, as this CQ/Roll Call story suggests, won’t just drop their argument that people can’t get subsidies through federal exchanges (in states that don’t run their own exchanges).
The Affordable Care Act will get tied into all the fighting to come over the fiscal cliff, entitlement reform, tax reform, the sequester and of course that looming debt ceiling limit. There are many ways that the GOP could still try to weaken or dismantle parts of the health law, including attempts to delay it, repeal specific pieces of it, or roll back some of the subsidies. But with Obama in the White House and Harry Reid running the Senate, repeal is off the table.
Scenario 2: President Obama wins. The Senate and House both Republican.
The House can and will vote to repeal the health law. The Senate wouldn’t have 60 Republican votes for a clean repeal (and probably couldn’t get enough centrist Democrats to cross to reach 60). That means they’d have to use a budget procedure called reconciliation which requires 51 votes, not 60. But reconciliation wouldn’t necessarily get rid of the whole law; there are complex budget rules and some interpretation would be up to the Senate parliamentarian. But they could get rid of a lot of it.
Obama, of course, would have to sign the law –so the whole thing is likely to get into a drawn out mess of brinksmanship, and it too would get folded into the larger fiscal questions. Some kind of compromise might emerge – if and when Congress rediscovers compromise, but expect a lot of brinksmanship first.
Scenario 3: Romney wins the presidency. Senate and House both Republican.
House repeal vote would be easy. The Senate might still have to use reconciliation but at the end of the day, the Democrats would have limited power to salvage much of the law.
Scenario 4 – Romney wins the presidency. Senate Democratic, House Republican.
This is the least understood scenario – maybe because until a few weeks ago nobody really thought this was very likely. But you know that “repeal Obamacare on day One promise?” Romney can’t do it.
The president can’t just make a law go away … and there’s no such thing as a “get out of Obamacare free” waiver. But Romney could “on day one” start undoing certain regulations (there are complicated rules about which ones he can reverse/freeze and which ones have to go through a long reverse un-rulemaking process). And his administration can reinterpret aspects of the law, and dramatically slow down the spending and implementation.
Much of the legislation would remain on the books – but none of it would work very well anymore. One business lobbyist has said he’s afraid of a “zombie law” with the head cut off but the body marching toward implementation. How to undo the rest of it legislatively – and what if anything would replace it – could be a long drawn out fight, and advocates may well challenge it in court. The word that came up most often when I recently reported out this scenario is “chaos.” The second-place word, “a mess.”
My Oct. 26 story is behind a paywall. Julie Rovner at NPR also took a look at this. Mary Agnes Carey at Kaiser Health News looked at how various pieces of the law could change under different scenarios.
We’ll come back to that after Tuesday – or whenever the lawyers finish fighting about the results.