While congressional Republicans remain bullish on efforts to repeal the Affordable Care Act, political reality dictates that they will likely be no more successful at it in the 114th Congress than they were in the 113th.

During the 113th Congress, there were 50 votes to repeal the ACA in the House of Representatives. Most pertained to repealing Obamacare as a whole. With both the Senate and the presidency in Democratic hands, these votes were largely symbolic attempts to appeal to the GOP base.

Now that the House and the Senate are dominated by Republicans, the strategy seems to have changed a bit in that Republicans are now targeting major components of the ACA, as well as pushing legislation to repeal all of it.

In January, the House passed two smaller pieces of legislation pertaining to the ACA:

  • On January 5, the House passed legislation to exempt veterans from the ACA’s business employee limits. In other words, effective January 1st, business which employee at least 100 full-time workers must make coverage available to 70 percent of their workforce, or face penalties. Effective January 1, 2015, that requirement includes businesses with 50 employees. Under the veterans bill, companies who hire veterans would not have those individuals count towards passing either the 100 or 50 employee threshold. The bill passed the House 412-0.
  • On January 8, the House passed legislation to change the bill’s definition of a full-time employee. Under the ACA, a full-time employee is defined as one who works at least 30 hours. The bill passed by the House would revise the definition to include workers who work at least 40 rather than 30 hours. It passed 252-172, with 12 Democrats joining the majority. Making the workweek longer would mean fewer employees would be eligible for healthcare benefits in accordance with the ACA’s employee mandate. Since the House passed its bill, legislation has been introduced in the Senate to scrap the mandate outright.

Additionally, legislation to repeal the Medical Device Tax established under the ACA seems to be gaining bipartisan momentum. The ACA levied a 2.3 percent tax on medical device sales to fund the law. Legislation to repeal the tax was introduced in January, and has attracted the support of more than half of the members of the House – including two dozen Democrats who represent districts where major device manufacturers are located.

The repeal of the Medical Device Tax seems to be tied to whether an alternative source of revenue can be found to replace the $30 billion the tax is projected to raise over the next decade. Senate Finance Committee Chairman Orrin Hatch, who has called it “a stupid dumbass tax,” has said that replacing the revenue is not a priority for him. Also, the Obama Administration has made hints about vetoing such legislation. The House bill is expected to receive a vote in March.

In addition to these targeted bills House passed a straight ACA repeal bill on February 3rd by a vote of 239 – 186. Also in February, a group of senior GOP lawmakers introduced an outline of what a Republican alternative to the ACA would look like. The outline, which is not expected to be the focus of hearings, would discard most health plan requirements in the present law, along with its new taxes and the requirement that citizens buy insurance. It would guarantee coverage for preexisting conditions, grant subsidies to poor citizens so they can buy health coverage, and transform Medicaid into a block grant program.

Casting a shadow over congressional activity is the fact that, this summer, the Supreme Court of the United States (SCOTUS) will rule on a case which could undermine much of the ACA. In King v. Burwell, the SCOTUS is expected to decide whether the law was intended to provide subsidies to consumers only in states which have created their own healthcare exchanges, or whether consumers in the 30 states which have not created such exchanges qualify as well.

Some say that, by voiding the subsidies, the SCOTUS could effectively gut the law. Others say that history has demonstrated that, once citizens have a certain government benefit (e. g. Social Security and Medicare), they are reluctant to give it up, and that Congress – even a GOP Congress – will feel public pressure to act legislatively to respond to the court’s ruling.

In summary, the effort by House and Senate Republicans to “repeal and replace” the ACA seems largely stalled while there is a Democratic president armed with a veto pen in the White House. Additionally, a recent study of all landmark laws passed since the 1950s showed that their prospect for repeal peaks approximately 10 years – or five subsequent Congresses – after its enactment. In other words, the long term prospects for Obamacare won’t be clear until Election Night 2016.

About The Author

Government Affairs Manager, COLA

As Government Affairs Manager at COLA, Richard Cross is a source of knowledge on federal and state legislation concerning the laboratory and healthcare community. He has a particular interest in addressing the potential clinical laboratory workforce shortages. His experience includes working in both federal and state government. He served on the staffs of Representatives’ Helen Delich Bentley (R-MD) and Bob Ehrlich (R-MD), as well as on the staff of the House Financial Services Committee. Additionally he served as sole State House speechwriter to Ehrlich when he became governor of Maryland. He has also served as Communications Director at Downtown Partnership of Baltimore, a non-profit organization which advocates on behalf of the Downtown business community.