A former aide to Senator Ted Cruz, Chip Roy, wrote a piece at The Federalist this morning with an appealing title: “Yes, 51 Senators Can Fully Repeal Obamacare.”
He argues that Republicans don't need to worry about what parts of ObamaCare they can repeal via the Senate's 51-vote “reconciliation” process because they control the Senate and can change the rules however they please.
He's absolutely correct. The Senate rules are not in the Constitution. They are set by the Senate and then interpreted by the Senate parliamentarian, currently a woman named Elizabeth MacDonough. If she determined that a full ObamaCare repeal was not valid via reconciliation, which is permissible only for budget-related items, Vice President Mike Pence (who is per the Constitution the presiding officer over the Senate) could simply take the chair and overrule her.
So yes, this plan to blow up the Senate rules to ram an ObamaCare repeal bill through Congress would work. But it would also be tantamount to the “nuclear option” for the reconciliation process and would come back to haunt Republicans and conservatives.
Democrats already learned this lesson the hard way. In 2013, Harry Reid infamously evoked the nuclear option and changed a rule nearly as old as the Senate itself - Democrats abolished the filibuster for federal judicial nominees and executive-level appointments.
Now, with Republicans controlling all three branches of government, the GOP has been able to push through nearly all of President Trump's executive nominees with just 51 votes while Democrats helplessly watch. Chuck Schumer has said he regrets Harry Reid's move. So has Diane Feinstein.
But, as drastic as it was, Reid's nuclear option was only for nominees. Republicans nuking the Senate reconciliation rules to repeal ObamaCare would pave the way for Democrats to pass their wishlist of big government agenda items with only 51 votes the next time they are in power.
For example, Democrats could pass a bill that creates a much-hated “public option” for health insurance via reconciliation with just 51 votes. Bernie Sanders was pushing for this in 2010, though at the time some Democrats weren't on board with the idea. They could push cap-and-trade climate change legislation through reconciliation because it contains some tax provisions. Democrats openly discussed this in 2010 as well, although they ultimately rejected it as an abuse of the reconciliation rule.
The sky would be the limit on what Democrats could pass via reconciliation, as long as the bill is related to the budget, because the Republicans would have given them the precedent to do it.
It's true that ObamaCare is a unique beast of a law, and conservatives point out that Democrats used reconciliation to get it passed. But this is only partially accurate. The Democrats actually passed the framework of ObamaCare with 60 votes in the Senate; they amended it via reconciliation with specific budget-related items that passed muster.
That tricky maneuver is coming back to bite them. Republicans are now undoing much of the law the same way much of it was born: via reconciliation! Live by the sword, die by the sword, as they say.
But using reconciliation to repeal the law in its entirety would create a precedent that any legislation with provisions that affect the budget can be passed with just 51 votes. Fair or not, Democrats would find a way to do it. The only thing keeping this from happening now is Senate tradition.
The desire to repeal ObamaCare is strong, but let's not shoot ourselves in the foot for a short-term win.