The difficulties of repealing health care reform

It looks like Rep. Bob Inglis (R-SC) and the other Republicans promoting repeal of the health care reform bill need some civics lessons. Here are the last four tweets to Inglis's Twitter account in chronological order (via Steve Singiser):

-What do you do when Congress passes a bad bill? You get a new Congress to repeal it!
-There's no bill passed by one Congress that can't be repealed by another.
-Focusing on the good news--that no Congress can bind a future Congress.
-That means that there's nothing written by one Congress (a health care bill) that can't be re-written by the next Congress.

In reality, however, a new Congress is hardly enough. Slate's Christopher Beam outlines the scenarios:

What would it take to repeal health care reform?
Realistically, a Republican majority in the House and Senate, plus a Republican president. Even if the GOP won back a majority in the House and Senate in 2010, President Obama could still veto any legislation that would repeal any part of health care reform. Republicans would then need a two-thirds majority in both chambers to override his veto. That's unlikely.

If the Republicans control the House, Senate, and presidency in 2012, they will still need 60 votes in the Senate to overhaul the bill in its entirety. They could, however, cut off funding for it through the budget reconciliation process, which only requires a 51-vote majority. But they wouldn't be able to tamper with any part of the legislation that doesn't affect the budget, such as the ban on discrimination against pre-existing conditions.

What I think is less clear to most people, however, is that repealing the key provisions of the bill may be impossible for Republicans even if they take back unified control of government in the 2012 elections.

The reason is that the legislation is built around the so-called "three-legged stool" of a ban on discrimination based on pre-existing conditions (to ensure access), subsidies to help people purchase coverage (to ensure affordability), and a mandate that everyone obtain insurance (to prevent free-riding and keep healthy people in risk pools). It's unimaginable that Republicans would repeal the pre-existing conditions provision, and getting rid of subsidies is likely to be extremely unpopular. That leaves mandates. While they may seem unpopular, getting rid of them alone would create a death spiral that would bankrupt insurance companies. As a result, the health care industry would likely unite with Democrats to block any attempt to eliminate the mandate provision.

In short, the major provisions of the new system are here to stay -- I think it's likely that Republicans will eventually scale back their apocalyptic rhetoric and focus on nudging the system in a more market-friendly direction. The problem is that their base has been whipped into such a frenzy that they will accept nothing less than full repeal. How long until reality intervenes?

Update 3/25 11:38 AM: More details and reactions are emerging. For instance, a senior GOP aide told Greg Sargent the Republican strategy will be to pursue "piece by piece" repeal:

There’s “nothing partial” about our repeal push, the senior Senate GOP aide told me, adding: “But it will be articulated piece by piece so our position won’t be misconstrued as walking away from the goals of reform."

...Case in point: Preexisting conditions. If Republicans pledge full repeal, they risk being painted as favoring the insurance industry’s right to discriminate along these lines.

Solution: “Republicans will work to repeal the mandates forced on individuals and small businesses and replace it with market based solutions and high risk pools so that nobody will be denied coverage on the basis of pre-existing conditions,” the aide says.

But for the reasons described above, it's not clear that you can remove mandates without creating insurance death spirals.

Also, via John Holbo, National Review's Ramesh Ponnuru essentially concedes the point I make above about the difficulty of repeal:

Understandably, [Republican senator John] Cornyn doesn’t want to touch the most popular element of Obamacare, the ban on discrimination based on pre-existing conditions. But unless it’s modified substantially, the individual mandate has to stay too — and therefore so do the subsidies and the minimum-benefits regs. Without perhaps realizing it, Cornyn has come out for tinkering at the edges of Obamacare.

It's only a matter of time until others realize this as well.

Update 3/25 1:37 PM: Yet more Republicans proposing partial repeal, such as getting rid of the mandate but keeping other components, without explaining how such a policy would work.

Comments

[MartyB]

Brendan,

I agree the three legged stool analogy you mention does make repeal unlikely and very structurally difficult - you can’t get rid of the mandate and leave the others in place. But the GOP has little option but to push for it or their base, reality minded or not, are likely to be mad.

It appears to me the death spiral for private insurers is at its tipping point already, as I suspect that now that a law exists the public option will soon be proposed, and this will soon make it impossible for private insurers to compete. This seems to me like the logical consequence of the three - legged stool, as I expect people to continue to act like humans and respond to incentives.

[Dan Clayton, CPA]

Brendan,

The more realistic life of this insurance reform, not healthcare reform...is that it will be declaired unconstitutional by a conservative Supream Court. I've read a number of articles that state that is a bogus potential, yet they are largely propaganda for the left and don't face the true constitutional questions at hand...

[Dan Clayton, CPA]

This is a bad bill, corrupt from the inside out! The first problem is that it is replete with legal hubris. I really struggle to understand the legal mind. Laws protect us from really bad things by setting limits, but they are very poor instructors. Can you imagine hiring the best refrees as NBA coaches? That is what this healthcare bill assumes. That the rule setters know how to play the game better than the professionals. So from the beginning we can assume we are going to get a worse game.
Then this bill barely eeks out a way to pay for itself via ponzi scheme 6 years of benefit for 10 years of tax... In reality the legislative laws beginning in 1972 with the anti-kickback law, and followed by Stark Law in 1992, 2002, 2006... are main contributors to the rapidly increasing cost of healthcare. We all make decisions on products and services to buy based on the cost for quality. This makes winners of those who serve us best and most efficiently. Yet every law Congress has passed about healthcare has continued to break that equation, distancing providers of care from quality consideration, and patients from cost consideration... No wonder costs have shot through the roof.

[Craig Masters]

These guys don't care if it's practical or even possible to repeal the bill, they just want people to THINK they can repeal, so they'll vote. Once in office, there will be no serious attempt to repeal. If the GOP plays this right, they'll have another wedge issue to distract us, while they rob the piggy bank!

[MartyB]

Craig - Great Swift-ian satire!

The Dems just passed a fiscally irresponsible healthcare bill (not to mention the previous stimulus et. al.) and it's the GOP robbing the piggy bank!

Good one. ;-)

[MartyB]

WSJ addresses this issue here, basically agreeing GOP is very unlikely to deliver on full appeal, but still may have options:

http://online.wsj.com/article/SB10001424052748703312504575141880967948708.html

[Joyce Melton]

A death spiral for private health insurance companies leads only one place: nationalization of health insurance. It should be pointed out to everyone that this is the end result of proposed Republican policies, that their solution amounts to eventual COMPLETE socialization of health insurance.

[Don H.]

A repeal is unlikely, but they can change pieces over time. As well, they can simply starve some portions of bill by not funding it.

Republicans will likely play the 'repeal' card because it will excite voters (assuming the sentiment of the majority favors a complete repeal). The truth is, most people are for some parts of the legislation, but we could have done without the 2300 pages! And add in the additional 150 pages for the "Dr. Fix" that will be voted on next.