Health Care Law Could Fall, and With It Obama's Legacy

By David Paul Kuhn - June 17, 2011

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That historic consolation could, however, be undone. As for conservatives, on this matter history is synonymous with notoriety. Newt Gingrich was once a supporter of a mandate. At Monday's debate, even he agreed that opposing the individual mandate should be a litmus test in the GOP primary. That individual mandate is the keystone of the law. Without it, reform surely fails.

Last year, House Budget Committee Chairman Paul Ryan, R-Wis., acknowledged that Republicans wouldn't be able to repeal health care -- if they can -- until at least 2013. This spring, Gingrich predicted that the legislation "will be repealed ... probably by March or April 2013." He added that even with Obama in office, the president "can block them from repeal; I don't think he can coerce them into funding."

Gingrich has always been a no-shot presidential candidate. Yet the former House speaker certainly knows the machinations of Congress. Should Republicans control Congress, Democrats' vulnerability is real.

"Republicans could refuse to fund aspects of its implementation," Mann said of this scenario. "Fail to confirm nominees to get the job done. Put other pressure on the regulatory front. They can really weaken it and make it extremely difficult to really move forward with everything from the effectiveness research to the changes in the basis of payment. Yeah, they can make it really tough."

Mann's caveat, however, is worth keeping in mind. Those who know Congress best agree that "nobody really knows," as fellow Brookings congressional expert Sarah Binder said.

"Neither extreme is likely. It's unlikely that the health care law remains in its original condition, as Democrats want it to be, or that it's entirely repealed," noted Binder, also a professor at George Washington University.

What if the GOP does not control both the executive and legislative branches?

"Republicans will have a tough time defunding health care," she said.

But imagine the GOP controls Congress and the White House. Yet they still lack a Senate super majority. Is reconciliation the way Republicans rescind the law?

"My hunch, it's probably the only way."

Reconciliation allows the majority party to neutralize a filibuster if the measure involves budgetary matters. Democrats utilized reconciliation to pass part of the final health care law, but Republicans have historically used the procedure most, including on measures such as welfare reform. They will not hesitate to utilize the tactic once more. But a yellow light flashes here too.

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David Paul Kuhn is a writer who lives in New York City. His novel, “What Makes It Worthy,” will be published in February 2015.

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