The first response from Wavering Willard Romney to the news that the Affordable Care Act had been ruled to be Constitutional was a vow to act to repeal and replace it beginning on the first day of his imaginary presidency.

We’ve become accustomed to Romney’s mentality being like that of a cat that puts its head under the bed and thinks that since it can’t see anything now, no one can see it. This latest set of Romney’s magic political underwear will not protect him nor the fantasy he wants to promote about being able to repeal the ACA.

Putting aside the probability that Romney won’t have a viable electoral path to the presidency, what if he did win and Republicans won control of the House and Senate, could they really repeal the ACA?

To get passed into law, the ACA required a 60 vote majority to overcome a filibuster in The Senate. Such would be the case in any repeal attempt but the Republicans would not have the 60 votes to prevail, even if they won every competitive Senate race in 2012.

Remember how Republicans howled about the outrage of Democrats considering the process of reconciliation to get the ACA passed with a simple majority vote? Knowing that they have no shame, couldn’t the Republicans use reconciliation to repeal the ACA with just 51 senate votes needed?

Hate to bring more tears to John Boehner’s waterlogged eyes but that’s not exactly going to work.

First, let’s jump to the probably inaccurate conclusion that reconciliation could be used in this case. It can only be applied to budgetary legislation. So the majority of aspects of the ACA could not be included. The absolute fact is that most of the provisions of the ACA could not be repealed via reconciliation. Hypothetically speaking, let’s say the budget aspects of the ACA could be repealed via reconciliation. Here’s an observation the New Yorker makes:

Many Republicans, especially in the blog and talk-radio swamps, would cry, “Use reconciliation!” Readers familiar with the congressional debates of 2009-2010 will remember that this procedure allows certain budgetary measures to pass through the Senate with a simple majority. (After Ted Kennedy died and was replaced by the Republican Scott Brown, Obama and congressional Democrats used the reconciliation process to make some final, crucial changes to the health-care law.)

But reconciliation wouldn’t work here—the process can only be used for policies that have budgetary effects and a C.B.O. score. Much of the A.C.A., such as the insurance exchanges and subsidies, would fall under these categories. But a lot of it, including the hated individual mandate, does not. Repealing the exchanges and subsides without repealing the mandate and the other regulations and cost controls in the law would create a health-care Frankenstein that a President Romney would be rather nuts to support.

Would the GOP and Romney want to put themselves in the position of having to follow the ACA law and all of its other provisions after having cut its method of financing, adding to the deficit in the process? And if they were able to repeal the mandate, would they really want to deal with skyrocketing health care costs this would cause, let alone the hundreds of millions it would cost to scrap the ACA?

Let’s say that they are so driven by hatred for the 99% that they would.

They may instead run into another big road block to using reconciliation. It’s called the Byrd Rule. From Wikipedia:

Reconciliation generally involves legislation that changes the budget deficit (or conceivably, the surplus). The “Byrd Rule” (2 U.S.C. § 644, named after Democratic Senator Robert Byrd) was adopted in 1985 and amended in 1990 to outline which provisions reconciliation can and cannot be used for. The Byrd Rule defines a provision to be “extraneous” (and therefore ineligible for reconciliation) in six cases:

  1. if it does not produce a change in outlays or revenues;
  2. if it produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions;
  3. if it is outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
  4. if it produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision;
  5. if it would increase the deficit for a fiscal year beyond those covered by the reconciliation measure; and
  6. if it recommends changes in Social Security

Consider requirement number 5. Reconciliation can’t be used on a matter that would increase the deficit for a fiscal year beyond the reconciliation measure.

If the funding mechanism for an ongoing program was killed and the law required the program to continue, it would generate an ongoing deficit. That’s simple economics. Since all of the facets of the ACA can’t be repealed using reconciliation and the Republicans would not have 60 votes in the Senate to overcome a Democratic filibuster, the program would continue to run but now it would do so without being funded. That would certainly appear to disqualify it for reconciliation due to The Byrd Rule.

No doubt the Republicans would argue some twisted logic about how that wouldn’t be the case but they don’t get to decide this, the Senate parliamentarian decides. And with the CBO stating the obvious, that the costs of the ongoing program would continue while the funding mechanism was killed, it is hard to see how anyone who had at least a 2nd grade education in mathematics couldn’t see that this would create an ongoing deficit.

None of this means that Romney or the GOP will stop claiming that they will repeal “Obamacare”. It rallies their mindless faithful and helps them raise money from the wealthy who despise the 99% getting anything. But they know it’s as futile as their upcoming vote in the House to repeal it. They don’t care, hating something or someone and getting other Republicans to do so is the basic goal for this power-obsessed party.

They think it’s a potent argument for them, howling for the repeal of the ACA. That may not be the case, it could instead be a meaningful factor in their losing in November.

To begin, having the namesake of Romneycare as your nominee is a bit inconvenient. Romneycare was the model on which the ACA was designed. Watching Romney contort himself into saying that his own program is evil if the federal government supports it but great if state governments support it is amusing and ineffective. It further erodes whatever credibility he retains with those who aren’t GOP lemmings. Add to that, in his speech yesterday, he basically said that he wants to maintain most if not all of the benefits of the ACA but without a mandate so that none of it is paid for. Huh? You can have all the ice cream you want and you never have to pay for it? Americans simply aren’t that stupid and Romney’s already not very respected as a source of veracity.

Then there is the war weary factor. Americans have been dealing with this war against the ACA for years and have been burned out on it. Many may not support it due to the big money propaganda campaign against it by the corporations and Right Wing but it is not something they feel strongly about. One poll showed that only around 8% of voters saw health care as an important issue in the 2012 election. Now that the SCOTUS has closed the main chapter on the case against the ACA, might not most Americans consider this issue thankfully over? Do Americans really have an appetite to re-invest themselves in a continuation of a futile war against their having affordable care? And if President Obama spends the time and energy to educate the public that the mandate won’t apply to 94% – 99% of the public, will they really be bothered by it anymore?

Meanwhile, if the GOP is ideologically driven to make repeal of the ACA a central issue for them and take time and attention away from the issues of jobs and the economy, keeping in mind that the public does not find battling the ACA an important issue, aren’t they voluntarily disarming themselves?

As is no doubt being strategized by the Obama campaign, if they can use this victory for the ACA as an opportunity to reverse the negative perceptions of it and make most Americans see it as the positive it is in their lives…and the historic and far reaching nature of it, doesn’t it become a great accomplishment and strength for Obama and his presidency, right alongside many others such as the killing of Bin Laden? Doesn’t it make him look more like a strong and successful leader? And again, doesn’t it benefit him to be taking time and energy away from a monolithic focus on jobs and the economy?

At the same time, won’t Romney and the GOP look meaner and smaller as they flail around against the ACA. The Party of No just reminding everyone that they are against everything that benefits anyone except the top 1% exclusively. Roll this message in with their wanting to destroy Medicare as we know it, Social Security, women’s rights, voting rights and on and on.

Their ongoing war against the ACA could be just the springboard the Democrats and Obama need to hammer home the message that the Republicans are only about destroying progress for the 99% so that the 1% can become more powerful and wealthy. They only invest their energy in tearing down the country, whether through prejudices, disrespect of the people and our democratic institutions or by trying to strip the people of the support and protection of its government.

It is difficult to see how Republicans pursuing their opposition to the ACA would be anything but a boon to the Democrats and President Obama’s re-election. The GOP base may be energized by their hatred over the ACA being held as Constitutional and moving forward but just check around the Progressive blogs and you’ll see a very positive, energized and excited Democratic base over yesterday’s developments.

President Obama and the Democrats are winners in a decades-long battle, the fruits of which will be enjoyed by Americans from this time forward. Placed alongside his other big accomplishments, it certainly seems to position President Obama as a truly historic President and someone who is generating greater and greater justification and enthusiasm for his re-election.

So the next time you hear Mitt Romney unconvincingly announce that he will repeal and replace “Obamacare” or nitwits like Bobby Jindal declare that they will refuse to set up a state health care exchange (then the Feds will simply go into the state, take away some of Jindal’s authority and set up and run the exchange themselves…what a genius Republican, voluntarily giving up power in his state to the hated federal government!), you might want to send them a thank you note and an “Obama/Biden 2012” bumper sticker.

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BourneIDglennKQµårk 死神kesmarnNomadic View Recent comment authors
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Wow! Who knew republicans even had a sense of humor?


There is a good post on “The Monkey Cage”
Hail to the Chief (Roberts, that is): Some thoughts on the legislative implications of today’s ruling

and it has some interesting thoughts on “What Next.

The sixth point in the post has to do with reconciliation and it is one of the best on the subject I have seen, much of it has been said here on the Planet. It’s almost as good as your explanation, AdLib.

Worth a look-see:

KQµårk 死神

Excellent article AdLib with some great wonkish policy stuff. You know the stuff the GOP hates.

But I don’t think you can understate how a Romney presidency can damage Obamacare’s implementation. Like all Republicans he will govern according to their self fulfilling prophecy that guvment is bad and does not work for the people. The biggest thing he could be successful taking away with the conservadems in the Senate is the fixed P&L ratio in the bill. That’s really the biggest thing greedy corporations want to cut out of the HC law NOT the mandates which they like. Believe me enough lobbyist money could buy 60 votes for something like that in the Senate even if the GOP does not have a filibuster proof majority.

For that reason and many others we need to make sure Obama is reelected to sure up his veto powers so Romney can not reverse Dem accomplishments.

Nomadic View
Nomadic View

Very interesting and well-researched article. Meaning, as usual.:)
I took the liberty of adding a link to this post at my own blog. I wrote a similar post about the repeal vote and saw your writing and thought there was no way I could explain it any better than you did.




Excellent article AdLib! Wonderfully researched, clear and concise observations and very well reasoned. If Romney gets the office (heaven forbid), he may be just be dumb enough to try repealing the ACA. But I can’t imagine one of his cabinet members not talking him out of it. It would be a real test of our democratic system to see the ACA being repealed. But, I sure would hope that the attempt is never made.

I have seen some articles suggest that such a repeal would add billions to the deficit. Could they (the GOPers) really be that stupid? I know they constantly attack Obama over the deficit, but when they are in power, they don’t seem to care one bit about the nation’s debt. See GW Bush for a splendid example.


Good morning KT,

Re your comment that a repeal of ACA in a Romney presidency would add billions to the deficit would probably be just a little bump, easily explained as the forewarned consequences of a failed one-term prsident who brought an economis holocaust to the country. And, as ChoiceLady points out, the gullible, frightened, uneducated who believe the Repub message will search their bibles and find some obscure passage that foretold the danger of electing a Black man whose people had given aid comfort to Noah’s son (thanks CL for this interesting tidbit).


For me, the bottom line is this:

First Day in Office – Willard signs some Executive Order abolishing ACA on his first day in office.

Second Day in Office – Senate moves to impeach Willard for his first day in office.


A dedication from Choicelady and Biff (aka Alpha Bitch): John Cash with God’s Gonna Cut You Down, for Mittens and Tony Scalia:



This is very clever, very funny.


Here you go, AdLib. This article and chart supports your view that healthcare won’t be a campaign issue.

A new Gallup poll finds that health care down on the voter issue list of importance. Health care is No. 5 on the issue list, behind the general economy, jobs, “dissatisfaction with government” and the federal budget deficit.

Read more:



AdLib, maybe the President and the Democrats should say something like: “Yes, Romney wants to overturn the ACA as soon as he gets into office. See, that is his business logic he practiced at Bain’s Capital. He went into those companies and he took away the employees healthcare, their pensions, their paychecks, their JOBS! That is his plans for the country and all of you. He is not concerned about jobs but taking away anything that he feels is in the way of investor interests and profits. Even if it means job creation offshore. “