In order to pass legislation to repeal the Affordable Care Act (ACA), also known as Obamacare, Congress would in theory need a simple majority – 50 votes – in each house of Congress. But Senate rules allow opposing parties to filibuster, or delay, voting, during which time the legislation is further debated. 60 votes are usually needed to break a filibuster (i.e., end debate and resume the vote).
While Republicans are the majority party in the Senate, they do not have a super-majority, or 60 votes needed to break a filibuster. So in January, the Senate passed a budget resolution, a instruction to several Congressional committees to draft legislation (called a budget reconciliation bill) to repeal the ACA. Unlike other types of legislation, budget reconciliation cannot be filibustered, but it limits the scope of legislation to spending provisions only, prohibiting Senators from repealing any non-spending provisions of the ACA. So for example, the budget reconciliation bill will be able to repeal the individual mandate (which is enforced via taxation), but not coverage of pre-existing conditions.
The spending and non-spending provisions, however, rely on each other to function. For example, in the health care marketplaces (exchanges), insurers must offer insurance plans to anyone who pays a premium (guaranteed issue), but cannot charge [much] more for sicker enrollees ([modified] community rating). Such benefits are likely to attract sick people who could not previously obtain insurance, so in return, we promised insurers an individual mandate, so that healthy people would sign up for their plans as well. The individual mandate, therefore, is crucial to the functioning of guaranteed issue and community rating. Other spending provisions include federal funding for Medicaid expansions, the employer pay-or-play mandate, and subsidies in the health care exchanges.
The ACA itself was not passed by budget reconciliation. The House passed the Senate bill, which became the ACA. About 40 additional pages of spending amendments were passed through the budget reconciliation process, but not the bill itself.
The budget reconciliation bill is not yet drafted, so we don’t yet know what, if any, provisions Senate Republicans intend to repeal. Republicans are divided about how to “replace” or “repair” the ACA. I will discuss some of the options that they have proposed in a later post.
In addition to all of this activity in the Senate, the executive branch has been working on a strategy for repeal as well. One of Trump’s first actions in office was to sign an executive order regarding the ACA. This executive order did not – could not – repeal, replace, or change the ACA. Rather, it “ordered” the “executive” branch to use its powers to begin doing what was in its power to “minimize the economic burden” of the law.
But in general, the executive branch does not have power over legislation; instead, its powers are limited to interpreting the regulations, or standards and rules governing how laws will be enforced. For example, under the executive order, Health and Human Services (HHS), part of the executive branch, might be more lenient in granting states waivers to effectively “do the ACA” in their own way (section 1332 waivers). It might also be more lenient in granting states Medicaid waivers, e.g. to charge premiums or copayments, or to expand eligibility or services (section 1115 waivers). The executive branch could also expand hardship exemptions under the individual mandate, which would make it easier for more people to claim an exemption from the mandate. The executive branch cannot, however, repeal or replace any provisions of the ACA. It simply has some flexibility in how to enforce the law.