Monday, November 8, 2010

The Repeal of Health Care?

Now that the Republicans have given a "shellacking" to the Dems, there's been a lot of talk about repealing the infamous health care reform act known in conservative circles as "ObamaCare."  But how realistic is repeal really?  Could the Republicans actually repeal the health care reform act or are they selling a lot of wolf tickets to gain political points?  Let's start with what we know.  We know that many Republicans ran on the platform of repealing the health care reform act.  We also know that there are 3 ways that an Act of Congress can effectively be repealed: (i) by Congress passing a new Act that repeals the old Act; (ii) by the Federal Courts (usually Supreme Court) ruling that the Act is unconstitutional; or (iii) by Congress refusing to fund the Act.  To help separate the fact from fiction, let's take a look at these 3 scenarios after the jump:

1. Congress Can Pass a New Act That Repeals the Old Act:
This has happened from time to time throughout our nation's history although major federal laws are not usually knocked off the books the same year that they are created.  Normally, Congress waits a few years to see how the laws actually work before it goes about repealing them, but there is no formal requirement to do so.  Congress can pass a new law that repeals only a few sections of an old law, (see the Job Training Partnership Act of 1982 repealed in part by Workforce Investment Act of 1998) or Congress can pass a new law that repeals the old law in its entirety (see the Chinese Exclusion Act of 1882 repealed entirely by the Magnuson Act of 1943).

Republican leaders like Eric Cantor in the House have gone on the record saying:

I believe that when we take majority in January, I hope that we're able to put a repeal bill on the floor right away because that's what the American people want. They understand that this bill is going to bankrupt this country and take away the health care that they -- most people in this country -- know and like.
So its probably fair to say that the Republicans are going for a good old-fashioned, flat out, chips all-in, 100% repeal here.  Theoretically, that only requires a simple majority vote in both the House and the Senate. In reality, however, its a whole differentl ball-game.  To give you an idea, think back to the original year-long health care debate.  It was hard enough for the Democrats to get Health Care passed through both houses of Congress the first time - and that was when they controlled both houses.  Imagine how impossible it would have been to get the same issue through both houses of Congress with the control of only one house.  Exactly. 

While you're thinking about that, consider this: even if the Republicans, by some miracle, were able to get the Anti-ObamaCare Repeal Act of 2011 through the House and the Senate, Article I Section 7 of the Constitution gives President Obama the power to Veto any Act of Congress with the stroke of his pen.  Although its true that this section also gives Congress the power to override the Presidential Veto with a 2/3rds vote in both houses, there's a small problem with that:   2/3rds of the Senate requires at least 66 votes -  thanks to the Tea Party, the Republicans only have 46 Senate seats (20 votes short).  Likewise, 2/3rds of the House requires at least 290 votes - despite the Republicans' shellacking at the polls last Tuesday they only have 239 House seats (51 votes short).  In other words, despite their best efforts, the Republicans don't have the numbers requied to repeal health care.  It's pretty safe to assume that they know this. Therefore, it is extremely likely that any Republican effort to repeal health care with a new Act is simply for show.

2. The Federal Judiciary Can Repeal Health Care:
We've done an extensive break-down on this HERE.  End result: not likely.

3. The Republicans Can Starve The Healt Care Act:
This is likely the path the Republicans will take given the fact that they don't have the numbers to repeal the Act straight up and they won't want to wait around for the Act to make its way through the Courts.  How this works is fairly straight forward: in order to implement the Health Care Reform Act certain federal agencies will need to receieve funding from Congress in order to carry out their new directives.  Congress can simply vote to deny them the money.  However, depending on the vehicle the spending bills are attached to, this path could wind up with the same numbers problem as #1 above.

Will the Republicans follow through with their promise to repeal health care now that they have the House?
Will they save it as a wedge issue for the 2012 elections?
Will the American people buy it?
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