by Sara Wilensky, JD, PhD
Co-author of Essentials of Health Policy and Law, 3rd Edition
With the Republicans in control of the Executive and Legislative branches of government, the outlook for the ACA is grim. Republicans in Congress consistently tried to repeal and hinder the success of the ACA since its passage in 2010 with only Democratic support. House Republicans passed multiple bills repealing the ACA despite Obama’s veto threat. Therefore, isn’t it a forgone conclusion that the ACA is history? Not necessarily. As the Republicans are discovering, it is much easier to protest than to govern. They have to deal with the reality that the uninsured rate is the lowest it has ever been and there is great political peril in upwards of 30 million individuals potentially losing their health insurance. Furthermore, they are finding that is hard to come up with solutions that ensure low out-of-pocket costs, limit federal government intervention, protect those with pre-existing conditions, and keep most people insured. Republicans also have to bring the conservative and moderate factions of their party together and, to date, have not been able to come up with a plan that satisfies all sides. Not surprisingly, the Democrats have demonstrated no interest in helping the Republicans with their quandary.
It will be easier for Republicans to dismantle the ACA than to build a consensus plan. The Trump administration has the power to undo regulations and change policy guidance (they have already begun doing so). These changes can be significant enough to severely disrupt the insurance market. The reconciliation feature of the budget process allows Republicans in Congress to pass a bill with a simple majority as long as its features only pertain to spending, revenues and the federal debt. Since reconciliation bills may not be filibustered, Republicans can pass a reconciliation bill without support from the Democrats. That means that Republicans can use a reconciliation bill to eliminate Medicaid expansion funds, premium and cost-sharing subsidies used to purchase insurance in the exchanges, and the individual and employer mandates. Taking these features out of the ACA would gut the law and make it unworkable in practice even though other features of the law (e.g., prohibition of pre-existing condition exclusions) would remain in place.
To create a replacement plan, however, Republicans and Democrats need to work together. With 52 seats, Republicans do not have a filibuster proof majority. As a result, Democrats can block any replacement plan as long as they do not have more than 8 defections. Some Republicans prefer to repeal the ACA right away and then hope the Democrats will agree to work together to pass a replacement plan, either because they are up for re-election in 2018 in competitive states or because they want to see people insured. Other Republicans fear the political backlash of repealing the ACA without a replacement on hand since so many will lose insurance. In addition, a number of Republican governors have supported Medicaid expansion under the ACA and do not want lose those funds or insurance coverage.
What will happen? Nobody knows how the politics will play out. It was a political surprise that the ACA passed during a financial crisis. It was a political surprise that Donald Trump won the election. Are other political surprises in store? We will have to wait and see.
Sara Wilensky is Special Services Faculty for Undergraduate Education in the Department of Health Policy and Management at the Milken Institute School of Public Health at the George Washington University. She is also the Director of the Undergraduate Program in Public Health. As both a teacher and a researcher, Dr. Wilensky concentrates on the financing, access and health care needs of the medically underserved, including low-income and uninsured individuals, farmworkers and patients with HIV and AIDS. She is the co-author of Essentials of Health Policy and Law from the Jones & Bartlett Learning Essential Public Health series.