The Washington PostDemocracy Dies in Darkness

Opinion Trump and Republicans have a new plan to destroy Obamacare. But they face a big problem.

(Jabin Botsford/The Washington Post)


The news of the morning is that the White House and congressional conservatives are suddenly optimistic that a new compromise is within reach that would enable repeal-and-replace to pass the House. The White House may roll out this plan today, and no doubt President Trump is excited that the “win” he craves — wiping out his predecessor’s signature achievement, regardless of the promises it breaks or the human toll it enacts — may again be within reach.

But Trump and Republicans face a problem: There’s a decent chance that his new proposal probably could not pass the Senate by a simple majority because of procedural obstacles, a congressional expert tells me, which would make its passage a lot less likely.

The new proposal would further relax some of the Affordable Care Act’s regulations, to placate conservatives who thought the previous GOP bill didn’t deregulate enough of it. States could seek waivers to opt out of the ACA’s requirement that insurers cover “Essential Health Benefits,” such as visits to the doctor, prescription drugs and maternity care. They could also opt out of the prohibition against insurers charging more from the sick than from the healthy. House conservatives are now saying this might get them on board.

Vice President Mike Pence vowed that President Trump will succeed in getting Congress to repeal the Affordable Care Act. (Video: The Washington Post)

But the problem is that, since this is a deregulatory change, a bill with this feature in it might not be able to pass the Senate by a simple majority under the “reconciliation” process, which is reserved for provisions with a budgetary dimension, according to Sarah Binder, a congressional scholar at George Washington University. This would trigger a so-called “Byrd Rule” challenge from Democrats, and to get around it, Republicans would have to appeal to the Senate parliamentarian.

Will Republicans replay the health-care fiasco?

“At first blush, it would sure seem that these are policy changes,” Binder told me this morning. “If these changes are primarily regulatory, they would likely be tripped up by the Byrd Rule.”

This scenario arose with the last bill. Recall that Republicans weakened the ACA’s Essential Health Benefits package in the last GOP bill to win over conservatives, but it didn’t prove enough. That, too, would have triggered a Byrd Rule challenge, and at the time top Senate Republicans even warned that it was unlikely to succeed. (White House officials had also been warning as much, but abruptly switched gears in a last-minute effort to win conservatives.)

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But the new version appears to add an additional deregulatory component. It doesn’t just provide a waiver for Essential Health Benefits; it also provides one for allowing insurers a freer hand to jack up prices for the sick. “This doesn’t solve the challenge of getting it through the Senate,” Binder said. “One reason it would likely not pass the Senate would be the procedural trap set by the Byrd Rule.”

Trump was right about health care for most of his life

The crucial point here is that this poses a short-term political obstacle, not just a long-term procedural one. Here’s why: House moderates — who balked at the last bill because it took coverage from millions — may be less likely to support this new proposal, for both substantive and procedural reasons. As Margot Sanger-Katz explains, the option to allow insurers to charge more could also wreak havoc on another key element of the ACA: the prohibition on discrimination against people with preexisting conditions.

Technically, the deal would still prevent insurers from denying coverage to people with a history of illness. But without community rating, health plans would be free to charge those patients as much as they wanted … the hypothetical cancer patient might be able to buy only a plan, without chemotherapy coverage, that costs many times more than a similar plan costs a healthy customer. Only cancer patients with extraordinary financial resources and little interest in the fine print would sign up.
There is a reason that many conservatives want to do away with these provisions. Because they help people with substantial health care needs buy relatively affordable coverage, they drive up the price of insurance for people who are healthy. An insurance market that did not include cancer care — or even any cancer patients — would be one where premiums for the remaining customers were much lower. The result might be a market that is much more affordable for people with a clean bill of health. But it would become largely inaccessible to anyone who really needs help paying for medical care.

Larry Levitt, a senior vice president at the Kaiser Family Foundation, notes that this could “raise costs for the sick.”

The rub of the matter is that House moderates might be even less likely to support this compromise if it is unlikely to pass the Senate for procedural reasons (or political reasons — Senate moderates, too, might also balk). “The question remains whether moderates would want to vote for a bill that would probably not pass the Senate,” Binder says.

Now, there are ways around this problem, but they create other difficulties. Republicans could simply override the parliamentarian with the help of the Senate’s presiding officer — some guy named Mike Pence — but that would really nuke the upper chamber’s norms. Or Republicans might be able to pass the bill through the House with conservative help even after losing moderate support. But recall that the protections for preexisting conditions are very popular, and moderates would now be asked to vote for something that undermines those protections, while also cutting spending on Medicaid — health coverage for the poor — by $800 billion and leaving 24 million more people overall without coverage. That may well put a lot of moderates in a very tough spot — the Democratic ads against them write themselves — meaning more could bolt this time.


* HERE’S ANOTHER PROBLEM WITH THE GOP STRATEGY: NBC’s First Read crew points out that Republicans are set to go on recess, which means they could get a major earful over the new GOP repeal plan:

Congress goes on recess starting Friday, and it doesn’t return until April 25 — three days before government funding expires on April 28. So not only does Congress have to cram to keep the government open later this month, this also means that ANY window to make another health-care push is very small this month.

This could make it even tougher for House GOP moderates to support something that undermines protections for people with preexisting conditions.

* TRUMP BUDGET CUTS RUN INTO BIPARTISAN OPPOSITION: The New York Times reports that Trump’s budget proposal to cut funding for the National Institutes of Health by 18 percent is running into fierce opposition from both parties in Congress:

While the agency does some research in its own laboratories, it distributes most of its funds to scientists around the country who are investigating cancer, heart disease, Alzheimer’s, diabetes, AIDS and other illnesses, as well as basic science that has no known link to a particular disease … Republicans and Democrats alike [have] pumped tens of billions of dollars into the agency and championed its work.

It turns out that government spending actually funds things people want — Republicans included.

* SESSIONS IS ROLLING BACK POLICE PROBES: NPR reports that Attorney General Jeff Sessions is dialing back the Justice Department’s emphasis on investigations of local law enforcement and is seeking a delay in an overhaul of the Baltimore police force:

The new directive … and the bid to reconsider an agreement in Baltimore are the strongest signs yet that the Trump administration not only plans to scale back the number of new investigations it launches into unconstitutional policing, excessive force and other law enforcement misconduct allegations but also the likelihood it will seek to reopen agreements the Obama civil rights unit had already negotiated.

Now we’re seeing what Trump’s campaign vow of a renewed emphasis on “law and order” really means.

* MORALE PLUMMETS AT THE EPA: The Los Angeles Times has a great piece detailing how the Trump administration’s hostility to science is gutting morale at the Environmental Protection Agency:

The Trump administration is moving as quickly as it can to diminish the place, with plans to cripple the EPA science office, stop the agency’s climate change work, cut its Superfund program in half and outright eliminate 50 programs … Agency scientists watched in dismay last week as EPA Administrator Scott Pruitt rejected their finding that a pesticide called chlorpyrifos must be removed from the market because exposure to high doses could inhibit the brain development of children.

As one longtime official puts it, the administration is “battling with basic scientific facts.” If Trump’s efforts to roll back climate regulations are successful, the long-term damage could be immense.

* REPUBLICANS BALK AT EPA CUTS: Roll Call reports that even some congressional Republicans are coming out against Trump’s proposed cuts to the EPA, which would require the wholesale elimination of many positions:

At the EPA, roughly 3,200 positions would be eliminated — about a fifth of the agency’s work force — along with 50 programs … Moderate GOP members or those with environmental problems in their home districts have so far been the most vocal opponents of Trump’s proposed EPA cuts.

Keep your Big Government hands off of those programs protecting the environment in my district!

* KUSHNER CARVES OUT UNIQUE ROLE: With senior Trump adviser Jared Kushner visiting Iraq, The Post takes stock of the deeply influential but unique role he has in the White House:

Kushner’s position has … given him the freedom to act as a shadow secretary of state, setting up his own channels of communication with world leaders … Kushner’s outsize role has led to … rivals whispering that he has little depth and lacks the self-awareness to know what he doesn’t know … Kushner also comes with financial entanglements, with new disclosures showing that he and his wife, Ivanka Trump, have property and investment holdings worth as much as $740 million.

But Kushner has no government experience, which makes him perfect for the job.

* UNRAVELING WHITE HOUSE SPIN ABOUT WIRETAPPING: Glenn Kessler has a must-read untangling of the spin and lies coming out of the White House about Trump’s claim that Obama wiretapped his phones. As Kessler notes, the latest iteration of this — that former national security adviser Susan Rice requested the names of people caught up in phone surveillance — might be slightly unusual only in terms of volume, and in fact was a reasonable aspect of her gig.

What’s really striking about this are the extreme lengths that the White House and its supporters are going to solely because Trump’s original charge must be propped up at all costs.