BREAKING: House Considering Last-Minute, Regulation-Repealing Changes to AHCA?

Guy Benson
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Posted: Mar 22, 2017 8:45 PM
BREAKING: House Considering Last-Minute, Regulation-Repealing Changes to AHCA?


[See UPDATE below for new details]. 

It's floor vote eve, and many creatures are stirring in the House. In a potentially dramatic eleventh-hour gambit, Republicans are considering pushing further than they initially thought possible to repeal additional Obamacare regulations within the American Health Care Act (AHCA). Remember, part of the reason that the current bill does not attempt to tackle certain issues is that under "reconciliation," all provisions must be germane to the budget. That's why buying insurance across state lines and tort reform aren't included, for example. For this same reason, unraveling some of Obamacare's "essential health benefit" regulatory mandates was seen as beyond the scope of Senate rules, and therefore relegated to phases two and three of the overall 'repeal and replace' strategy. But Utah Sen. Mike Lee tells the Washington Examiner's Philip Klein that the Senate Parliamentarian -- the official responsible for making the relevant determinations about various provisions' acceptability under the rules -- informed him that regulatory repeal would not necessarily be out of order:

Sen. Mike Lee, R-Utah, said on Wednesday that the Senate parliamentarian has told him that it may be possible for Republicans to push harder on repealing Obamacare's regulations than the current House bill, which contradicts the assertion by House leadership that the legislation goes after Obamacare as aggressively as possible under Senate rules. "What I understood her to be saying is that there's no reason why an Obamacare repeal bill necessarily could not have provisions repealing the health insurance regulations," Lee said in an interview with the Washington Examiner, relating a conversation with parliamentarian Elizabeth MacDonough about reconciliation he had on Tuesday...

Conservatives such as Lee have argued that Republicans should fight harder to argue that the regulations, which have a clear budgetary impact, can be passed through reconciliation. But House leadership and supporters of the bill have countered that the legislation already goes as far as possible. House Speaker Paul Ryan spokeswoman AshLee Strong, when asked about this by the Washington Examiner last week, said "We've worked closely with the Senate to carefully craft the bill to repeal and replace the law to the full extent allowed under the rules." But having met with the parliamentarian, who plays a key role in advising the presiding officer of the Senate over what's in bounds during reconciliation, Lee is more convinced than ever that this is not true.

Klein cautions that this isn't an indication that such changes would be permissible; only that they are not automatically out of bounds, depending on how they are written and presented. As a result of this new information (more on that in a moment), House leaders say they're open to amending the legislation further to strip out additional regulations that they previously thought could not pass procedural muster. If this happens, the House Freedom Caucus could be brought on board after all. Also via the Examiner:

Previously, House leaders have argued that the regulations could not be nixed, because doing so would blow up the bill in the Senate, where Republicans will have to pass the measure under restrictive rules to enable it to clear with a simple majority. But a House leadership aide told the Washington Examiner that on Wednesday, Republicans received new information from the Senate, indicating that axing the regulations wouldn't automatically doom the bill from being considered on an expedited basis...House Speaker Paul Ryan's office is now more open to nixing the regulations, known as "essential health benefits." Under Obamacare, all insurance policies must include ten categories of benefits, such as maternity care and preventive coverage, that make policies more comprehensive but also make it costlier for individuals who would prefer cheaper plans with fewer benefits.

A few thoughts: (1) How could Republicans just now be learning this? Either they didn't do their homework, which would be an astonishing dereliction, or this is a real procedural stretch.  My suspicion is that the latter is the case, but even if that's so, it's still certainly worth exploring. (2) That House leaders are potentially moving in this direction tells me that President Trump and Speaker Ryan aren't confident that they have the requisite head count for tomorrow's scheduled floor vote. (3) Based on multiple conversations with top House sources in recent weeks, I can report that they really believed they were already pushing the edges of what they could accomplish within the Senate rules with the existing AHCA. Perhaps as a sop to Lee and House conservatives, they're willing to tack on these additional changes to get the legislation through the House with relative ease, then really buckle down with the parliamentarian to make sure that the legislation isn't ruled out of order on the Senate side. This very well may require stripping these new provisions back out, in addition to a host of anticipated amendments during the Senate process.

As such, if pushing as far as conceivably possible under the reconciliation framework on the House side won't endanger the success of the overall bill, why not go for it -- especially with this new, vague guidance from the parliamentarian? If the rule-enforcer reviews the changes as decides they're not kosher, fine.  Take them out for the sake of saving the bill.  But give it a shot.  Repealing a number of Obamacare's 'mandatory minimum coverage' regulations through the legislative process, as opposed to through executive actions by the HHS Secretary ("phase two"), would almost certainly help reduce premiums even further. (4) If these non-trivial adjustments are being made tonight and tomorrow, wouldn't that render the forthcoming new CBO score of the bill basically useless? And if CBO needs to review yet another major iteration of the legislation, how can tomorrow's floor vote proceed on schedule? (5) How will the GOP moderates -- remember them? -- feel about all of this?


UPDATE: Fresh reporting: