Republican ‘Repeal and Replace’ Strategy Faces Legislative Roadblocks

BY Lea Winerman  September 23, 2010 at 3:17 PM EST

As part of their “Pledge to America” released Thursday, Republican lawmakers codified what they have been saying for months: If elected, a Republican-led Congress would aim to “repeal and replace” health care reform.

But with a Democratic president in the White House, full-scale repeal seems impossible, even if Republicans gained control of both houses of Congress in November. Given that, some Republicans say they will aim to roll the law back bit by bit, repealing individual provisions and aiming to starve it of funding, according to reports in the New York Times and Politico this week.

Some of these efforts have already begun. Sen. Mike Johanns, R-Neb., introduced an amendment to repeal a provision that would have required more extensive tax reporting from businesses, including small businesses. The measure failed, but 46 senators (including seven Democrats) voted for it. Meanwhile, an amendment introduced by Sen. Orrin Hatch, R-Utah, would take away the requirement that large employers offer health insurance beginning in 2014.

“Without the president, we can’t repeal it,” Senate Minority Leader Mitch McConnell, R-Ky., said in a speech recently, according to Politico. “But we can go after portions of it aggressively.”

Republicans have also said that they will attempt to withhold funding appropriated in the law, taking away the money that federal agencies need for the mammoth task of implementing health reform — for example, money that the Internal Revenue Service would need to enforce new tax penalties in the law.

“They’ll get not one dime from us,” House Minority Leader John A. Boehner, R-Ohio, told the Cincinnati Enquirer. “Not a dime. There is no fixing this.”

But some congressional experts say that the Republicans’ strategy, while it may be an effective political tool, would face major legislative hurdles. No comparable attempt to repeal all or portions of this kind of major legislation has ever been tried, says congressional scholar Thomas Mann, of the Brookings Institution. The closest, he says, was when Congress in 1989 repealed the Medicare Catastrophic Insurance Program, which had passed the year before. But that repeal effort had bipartisan support.

“I can’t come up with an example of a major policy initiative, passed with controversy, that in a period of divided party government the party [that was] opposed managed to disable,” Mann says.

Withholding funding for the law would require passing budget legislation that could also be subject to a presidential veto. Such a budget fight could be bruising for both parties, and could lead to a temporary government shutdown, Mann says, as happened in 1995 when President Clinton and a Republican Congress reached a budget stalemate.

“[Republicans] won’t be in a position to [...] carry forth any budget on their own, unless they’re prepared to go to the mat with the president,” Mann says.

Repealing individual portions of the law could also hit roadblocks. Republicans are taking aim at some less popular provisions, such as the mandate that will require all Americans to purchase health insurance beginning in 2014. But many Republicans are in favor of holding on to some more popular provisions.

“The bill included several items that Republicans are for, such as dealing with pre-existing conditions. So we would be careful to include those in any final legislation,” Sen. Lamar Alexander, R-Tenn., who is in favor of repealing the law, told the New York Times.

But many of the provisions in the law are interrelated in complex ways, points out Norm Ornstein, a political scientist at the American Enterprise Institute. For example, it’s difficult to keep the no-preexisting-condition-exclusions clause without dramatically expanding the pool of people who have health insurance, he says. If you do, more people who are seriously ill will sign up for insurance without a corresponding increase in healthy people — a financially unsustainable situation for insurance companies. That’s what the individual mandate was designed to address.

“There aren’t all that many provisions you can parse out individually,” Ornstein says.

One thing that Republicans could certainly do if they gained control of Congress, both Mann and Ornstein say, is to gum up the works for the administration — issuing subpoenas, calling federal officials to testify on Capitol Hill, and generally distracting the people charged with implementing the law.

For example, Ornstein says, last week Republicans objected to Health and Human Services Secretary Kathleen Sebelius’s letter to insurers chastising the companies for blaming insurance rate hikes on the new law. Were they in the majority in Congress, Ornstein says, they could have called her to testify on the hill — taking her and her staff’s time and energy.

“They can torture the administration with hearings,” says Mann.