ACA repeal has been declared 'dead' countless times. What would really mean it's failed?

Topics: Health Care Reform, Politics and Policy, Health Care Legislation, Federal Government, Insurance, Medicaid

By Josh Zeitlin, Editor

The GOP's effort to repeal major parts of the Affordable Care Act (ACA) has been declared over many times—only to resurface.

Some members of the press have even taken to calling the bills "Zombie Trumpcare" or "Vampire Trumpcare."

But after Senate GOP leaders failed last week to garner 50 votes for any of three bills ("repeal-and-replace," "repeal-and-delay," or "skinny repeal"), is the party's ACA repeal effort really dead this time? And if not, when would observers know it won't be resurrected again?

Is the clock ticking on ACA repeal legislation? Senate experts say it's not clear

This much is clear: ACA repeal isn't dead yet. In fact, President Trump met with three GOP senators on Friday to discuss yet another health reform plan.

Still, the clock may be ticking because of how the GOP chose to try to pass health reform: the budget reconciliation process. That allows the GOP's effort to advance with just 51 votes, rather than 60 (so long as the legislation adheres to certain rules, such as including only budget-related provisions).

The health care bill gained that privileged status because of language included in the fiscal year 2017 budget resolution. For now, several experts in Senate procedure told American Health Line, it's clear that Republicans can still use that reconciliation ability—but just weeks from now, we could enter into uncharted territory.

According to these experts, the current reconciliation authority could end on Sept. 30, … or perhaps when Congress adopts a FY 2018 budget resolution … or perhaps even later, depending on how the parliamentarian rules. The question just isn't settled.

The first question: After Sept. 30, could the GOP use reconciliation for a health care bill?

Rodney Whitlock, a VP at ML Strategies and a longtime health care advisor to Sen. Chuck Grassley (R-Iowa), said that Sept. 30 "should be treated as a real deadline" given the lack of precedent for allowing a reconciliation vehicle for a budget year that has already expired. Steven Smith, a professor of political science at Washington University in St. Louis, also thought that was the most likely scenario.

But former Senate Parliamentarian Alan Frumin told American Health Line that "it is an open question how long the reconciliation bill remains privileged." Several other experts agreed, although they disagreed on the odds that the current parliamentarian, Elizabeth MacDonough, would rule in the GOP's favor if leaders attempted to advance health reform after September.

Sarah Binder, a professor of political science at George Washington University, said that if the GOP does not adopt a new budget resolution for FY 2018, the parliamentarian would be just as likely to rule that "the health care reconciliation bill would remain alive until the end of the Congress"—so potentially until early 2019. That possibility, said Ed Lorenzen, a senior advisor for the Committee for a Responsible Federal Budget, "is stronger than generally assumed."

Regardless of how the parliamentarian rules on these questions, it's technically possible the chair of the Senate could overrule her—although most experts said that was highly unlikely. "Overruling the parliamentarian on the issue of reconciliation privilege is closely related to the issue of ending the filibuster, which senators overwhelming oppose doing," Lorenzen said.

However, Whitlock wasn't so sure. If the GOP "gets alignment on the policy" and "came to an agreement that they'd be willing to go to war on," he said—a big if—"the process will not stand in the way."  

The second question: If the GOP adopts a FY 2018 budget resolution, would that prevent them from looping back to health reform?

Several experts told American Health Line that the current parliamentarian likely would rule that a newly adopted budget resolution would render the previous reconciliation instructions inoperative. But Frumin, the former Senate parliamentarian, said that's an unsettled question as well.

Either way, if Congress were to pass a new budget resolution, that resolution could lay out reconciliation legislation instructions for health care, tax reform, or both—potentially keeping the door open for ACA repeal.

But passing a bill under those conditions could prove challenging. Binder and Smith said that if Republicans took that path, they likely would need to pass health reform and tax reform as part of the same reconciliation bill. (The parliamentarian has previously ruled that a budget resolution can allow for only one bill each for changes to spending, revenue, and the debt limit.)

Plus, under a new budget resolution, Lorenzen said that "Congress would have to start fresh with a new reconciliation bill"—meaning the House would have to re-pass the American Health Care Act (AHCA) or advance another health care bill. (Binder, for her part, described that possibility as "new terrain" that might be subject to a decision from the parliamentarian.)

So could this be the song that never ends?

The GOP health care bills likely would never meet the standard for "over" laid out by Kaiser Health News' Julie Rovner. Ultimately, though, the question of whether the ACA repeal effort is over may depend more upon politics than process.

"There are some pretty tough institutional constraints on the Republicans if they want to continue to pursue their tax and health care agendas through reconciliation," Binder said. "But the political barriers—a deeply divided, slim majority led by a widely unpopular White House—seem steeper."

For now, the repeal effort seems stalled. Politico reported Tuesday night that "privately, Republican aides said there is essentially no chance [Senate Majority Leader Mitch] McConnell (R-Ky.) will take another shot at repealing Obamacare soon."

Then again, GOP leaders in March declared the AHCA was "dead." Two months later, the bill passed the House.