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The Republicans’ 3 prongs have 3 big problems

A 3-pronged repeal-and-replace strategy can only get the GOP so far.

Photo by Justin Sullivan/Getty Images

The health care debate is, as of late, all about the prongs — three prongs, to be exact. All the most powerful Republicans, including House Speaker Paul Ryan and White House press secretary Sean Spicer, are talking about the "three-prong" strategy to repeal and replace Obamacare.

My colleague Jeff Stein wrote an excellent explainer on this. It made one thing exceptionally clear to me: Trying to move repeal and replace through the three-prong process will be really difficult. It's not clear that all the prongs can even happen. Here's a perusal of the prongs — and their problems.

Prong 1: Pass the American Health Care Act through the reconciliation process. This allows congressional Republicans to pass the bill with just 50 votes in the Senate. It also limits legislators to only including policies that directly affect the federal budget.

The problem: Republicans haven't yet agreed about what should be in the reconciliation bill. Most of the disagreement centers on how much the bill ought to continue Obamacare's coverage expansion. The AHCA would end the Medicaid expansion in 2020, but more conservative Republicans want to see that date moved up to 2018.

What's more, it's not clear that the AHCA can actually move through reconciliation. There are multiple provisions that Senate procedure experts (including the former Senate parliamentarian) are skeptical will survive the reconciliation process — they just don't seem related to the federal budget in any way.

Prong 2: Use regulatory actions to dismantle Obamacare through the executive branch. Much of the Affordable Care Act was accomplished through regulation. Adrianna McIntyre and Nicholas Bagley have compiled an impressive list of Obamacare regulations that the Trump administration could presumably overturn. They range from Obamacare's birth control mandate to limiting special enrollment periods or halting enforcement of the individual mandate.

The problem: Regulation can only get you so far. There are big parts of Obamacare that Republicans simply can't undo through regulation. Take, for example, Obamacare's essential benefits package. It requires that all insurers cover a set of 10 medical benefits including maternity care, mental health services, and lab tests. Republicans really want to repeal this provision. They argue (accurately) that requiring the coverage of so many benefits makes premiums more expensive.

Those categories are written into law, so they cannot be overturned through the regulatory process. The Trump administration could decide to stop enforcing the essential health benefits provision, although that would near certainly engender lawsuits.

There is a lot the Trump administration can do within the regulatory framework. But it can't touch the things that are actually written down in the Affordable Care Act, which brings us to...

Prong 3: Pass additional health care bills that don't have to relate to the federal budget through normal rules. The idea here would be to move other bills (predominantly bills that reregulate the insurance industry) through normal Senate rules, requiring 60 votes to overcome the filibuster.

The problem: The third prong rests on a tenuous assumption: that Democrats will go along with passing these bills, or Republicans will soon gain a 60-member majority in the Senate. This is why Sen. Tom Cotton (R-AR) is so skeptical of the whole setup.

He describes the third prong as "some mythical legislation in the future that is going to garner Democratic support and help us get over 60 votes in the Senate. If we had those Democratic votes, we wouldn’t need three steps. We would just be doing that right now on this legislation altogether."

There's one big, overarching problem here: Democrats passed Obamacare with a 60-member majority in the Senate, and Republicans need a 60-member majority to undo it.

One of the big misconceptions I run into about Obamacare is that it was passed through reconciliation. That isn't true: The main pillars of the law (the insurance expansion, new insurance regulations, new taxes and fees) all moved through regular order. The Senate did pass some small changes to the bill through the reconciliation process, but the actual substance of the bill went through normal order — and that required 60 votes.

"All the significant policy underpinnings of Obamacare were contained in a bill that could be filibustered," says former Senate parliamentarian Alan Frumin. "That was not a privileged reconciliation bill."

Democrats needed 60 votes to pass Obamacare, and at the end of the day, Republicans need 60 votes to completely dismantle it and replace it with something else. They don't have 60 votes right now.

Maybe they could, somehow, get 60 votes together. Joe Antos at the American Enterprise Institute, for example, recently suggested to me that Republicans might be able to cross that threshold if they packaged health care provisions with a large omnibus package, perhaps one focused on infrastructure.

"If it's just a health care package, I don't think it will work," Antos said. "If it's health care and other things they want? In the end, it's very hard for a Democrat to say we voted against something that would help our state or district."

Right now, though, that package doesn't exist. Sixty votes for replace don't exist. Until they do, repeal and replace will be out of reach — regardless of how many prongs any plan has.

Vox (and ProPublica) needs your help!

Last week, Vox announced a partnership with ProPublica, Kaiser Health News, and Stat to fact-check the letters legislators are sending to constituents about the Affordable Care Act.

So far we have collected letters from 104 representatives and 43 senators representing 39 states. That is a whole lot of letters! But we're still looking for even more, ideally collecting letters from every member of Congress. Think you can help? Check to see which letters we're currently missing.

Chart of the Day

Brookings Institution

Premiums under the GOP replacement plan actually go up if you hold the type of plans and the type of people buying them constant, a new study from Matt Fiedler and Loren Adler at Brookings finds. Much of this increase comes from the repeal of the individual mandate.

Kliff's Notes: Today's top health policy reads

With research help from Caitlin Davis.

  • "Conservatives prep amendment to GOP's Obamacare repeal bill": “House Speaker Paul Ryan, R-Wis., said the GOP would 'refine' the bill but suggested the changes would be minor. But Labrador said conservatives would not accept "cosmetic" changes to the legislation. ‘That's not going to get me to a yes,’ [Rep. Raul] Labrador said. ‘Fundamental changes that keep the promises we made to constituents, I think that can get us to a yes.’" —Susan Ferrechio, Washington Examiner
  • "Obamacare Pushed Nonprofit Hospitals To Do Good Beyond Their Walls. Now What?": “‘There’s no question the Affordable Care Act required us to bump up our game,’ said Joan Quinlan, its vice president for community health. If people lose coverage, she added, hospitals will increasingly argue that’s enough reason for a tax break. It could stifle efforts to promote more substantial community benefit. ‘If the ranks of the uninsured or underinsured grow, then charity care will increase. And the ability to do some of these more creative downstream efforts will be hampered,’ she said. ‘There might be heightened awareness. But if there aren’t resources to address them, it’s going to be hard.’” —Shefali Luthra, Kaiser Health News
  • "Trump's budget on health: 3 winners and 2 losers": "The 18 percent cut to the Department of Health and Human Services includes a $5.8 billion reduction for the National Institutes of Health, or about a fifth of its budget. This will decimate the basic and clinical scientific infrastructure in the United States, said Joseph Ross, a professor of medicine at Yale University. Spending on health R&D in the US has already been flagging, and most of the NIH’s budget goes to an army of 300,000 outside researchers, so a very broad community of researchers would feel the effects of a budget reduction of this size." —Julia Belluz, Vox