Can the GOP repeal the Affordable Care Act?

The closed-door vote was unanimous Thursday morning: Senate Republicans want Mitch McConnell of Kentucky to be their next majority leader in the 114th Congress, convening in January.

Topping his list of things to do to lead in the GOP’s loudest war cry: repeal or replace elements of the Affordable Care Act (ACA), better known as “Obamacare."

“We will be voting on those issues, both the overall ‘Obamacare issue and the various pieces of it,” McConnell said.

“The House, I am sure, will move next year to repeal ‘Obamacare,’ because it should be repealed and it should be replaced with common-sense reforms,” said Speaker of the House John Boehner.

It has been more than a year since the law went into effect, and an estimated 7 million people are enrolled in plans through the insurance marketplaces created under the ACA. By the end of next year, the Department of Health and Human Services project, 9 million people will be enrolled. At that pace of growth, can the ACA reach its goal of 25 million people by 2017?

One of the main sticking points for congressional Republicans and even some of the most liberal Democrats, is the medical device tax, a 2.3 percent tax that manufacturers and importers have to pay on every piece of medical equipment they sell or bring into the country. The tax was designed to help fund the Affordable Care Act, raising an estimated $30 billion over 10 years.

Last week a possible obstacle appeared before the ACA. The Supreme Court announced that it will decide on the legality of subsidizing people’s insurance coverage in 37 states that use the federal HealthCare.gov marketplace. At the heart of the case is the AC’s stipulation that subsidies may be given to people who bought their plans on marketplaces “established by the state.”

And this week the Republican battle against “Obamacare” was  further energized when videos surfaced of one of the ACA’s chief authors, economist Jonathan Gruber, implying the administration capitalized on naive voters.

Is the administration having trouble meeting enrollment targets? Why is the projection for new enrollments lower for 2015?

Which provisions of the ACA will Republicans go after? Which are they most likely to succeed in changing?

What would a different individual mandate look like? And could that disrupt its legality, upheld in the Supreme Court as a tax?

We consulted a panel of experts for the Inside Story.

Inside Story: Which provisions of the ACA you recommend that the Republicans go after, and why?

Tevi Troy: Initially they will go for a repeal, which has symbolic importance. There is no chance of repeal being signed into law by President [Barack] Obama. Still, for Republican leaders to make surgical cuts, they must make a run at repeal first. After that, they must look at changes inside the law. A study on the [medical devise] excise tax that I co-authored shows the tax will impose costs on the whole system, not just on employees. There is the possibility of a labor-employer coalition. If all the Republican Congress accomplishes is the repeal of the device tax, it will be a disappointment. That is not why the grass roots elected a Republican Congress.

What do you make of the merits of the subsidy suit? Couldn’t it just be a typo?

It is a statutorily passed language. It is the law of the land as it was written, and it said it could only establish exchanges. It is misleading to say it is a typo. If you look at Jonathan Gruber’s comments, people who wrote the law never anticipated that states would not want to run exchanges. The law assumed they would.

Some people argue that the Republican Party does not have a good alternative. What would your alternative system be?

First of all, I would argue for a more modest approach. The ACA tried to redo everything at once. I do not think the American system can withstand that kind of change all at once. Republicans have proposed a lot of different alternatives. They talk about allowing purchases across state lines. They talk about personal choice in health care, tort reform and some kind of tax benefit to encourage purchase of health insurance — a goody. There are commonalities in their approach. The Congressional Budget Office scored a Republican alternative back in 2009 and found that it would reduce the cost of premiums. It did not cover as many people as the ACA, but it did not cost $2 trillion in the process. You have a real viable alternative there. We do not yet have one single plan, because we do not yet have a standard bearer. Once we have a presidential candidate and standard bearer, their alternative will have those elements.

What are the stakes in the Supreme Court’s possibly striking down subsidies for insurance bought through the federally run exchange?

Micah Weinberg: They are huge. It is very difficult to see how the law continues in anything like its current state even in states with state-based marketplaces if the Supreme Court breaks with centuries of jurisprudence and makes a politicized decision to ignore legislative intent in this area. It would be shocking and odd for the Supreme Court to not undo key pieces of the law before it began, when they had valid legal justifications to do so, and instead to overturn it now, without such justifications.

Is the administration having trouble meeting enrollment targets? Why is the projection for new enrollments for 2015 lower?

Well, the big story is that, surprisingly, we met the first year’s enrollment targets, given all of the challenges in the rollout last year. In places like California, where we really tried to enroll people, we blew away expectations. As for the coming year, they are setting more realistic expectations. Lower enrollment is partly due to political controversy over the law. In a state like Mississippi, for example, where opposition is high, there has been especially low enrollment.

Which provisions of the ACA will Republicans go after. And which are they most likely to succeed in changing?

McConnell mentioned three things — the medical device tax, the new definition of full-time work for the employer mandate and the individual mandate. How successful they are will depend on how constructive they are. If they take a scorched-earth approach through the budget process and hold up basic spending bills to get their way, they will find limited appetite from the administration and their Democratic counterparts. If they look at the employer shared responsibility mandate, which is a bit of a mess, or repealing the device tax, which has bipartisan support, or tweaking the individual mandate in such a way that achieves something similar, then there could be a lot of bipartisan interest.