John McDonough, author of Inside National Health Reform and an expert on the ACA and the legislative process, agrees with me that repeal of health reform is possible if the Republicans take over the government. Actually, he thinks that repeal of some elements of the law are almost certain in that case. By email, he also corrects a widely held mistaken impression of Reconciliation.
He wrote me,
I pretty much agree with your take. Here’s my best estimate at this time:
If the Rs hold the House, and then take the Senate and the White House, Reconciliation-generated repeal of all major elements of Titles I (private insurance) and II (Medicaid) are fairly certain; they may keep some of the early, already-implemented reforms (the blessed under-26 year olds, eg), though they will certainly eliminate Medical Loss Ratio limits and other reforms hated by the insurance industry. I would be fairly certain they would hold onto the Medicare cuts in Title III because they have already done that in their votes for the Ryan budget plan, and they will pick and choose on the delivery system reforms in Title III. They probably would try to repeal most of Titles IV (prevention) and V (workforce) — though may have a harder time because most have no direct budget consequences. They are likely to keep most of Title VI, such as fraud and abuse, and the elder justice act, even the physician payment sunshine act (because all are Sen. Chuck Grassley initiatives) — and will probably can the Patient Centered Outcomes Research Institute. Title VII, biosimilars, will surely stay. Title VIII, CLASS, will be gone. And Title IX, revenues, nuked out of existence.
Note that McDonough is not suggesting a wholesale repeal, but a repeal of specific parts of the law. Maybe some will be replaced by something. Maybe not. In any case, I take this as good evidence that it is not unreasonable to think something like repeal of the law, or parts thereof, would be in play if Republicans sweep in 2012.
Capretta’s theory of how Reconciliation could be used to repeal the ACA is mostly plausible and legitimate. There is one key confusion held by many on both sides — Reconciliation provisions do not have to be budget cutting, they only have to change the budget in a significant way, up or down. That has been the rule since the GOP changed it in 2001 to pave the way for use of Reconciliation to approve the Bush tax cuts, which were definitely not deficit reducing. So the Rs in 2013, in control of the House, Senate, and White House could use Reconciliation to repeal the ACA even if that measure increases the deficit — which it would. Alternately, they can preserve the ACA’s Medicare reductions and thus probably advance an ACA repeal which would reduce the deficit. [Emphasis added.]
This, by the way, also means Reconciliation could be used by either side to change budget-related provisions pertaining to health care even if they increase the budget. Hence, what can be done via Reconciliation in the name of budget cutting (or not!) can be restored by Reconciliation. The process is reversible. Given that, why would anyone think it would be used only once? I don’t. In fact, repeal via Reconciliation would be the second use of the maneuver with respect to the 2010 health reform law. Lather, rinse, repeat.