The mandate is now a tax per the Supreme Court and can be repealed by the GOP via a 50 vote Senate reconciliation plus GOP VP vote, but can reconciliation repeal the whole bill? Reconciliation (a 1974 law) is interpreted under Senate Rules as reserved strictly for budget-related measures that involve spending or revenue and do not increase the deficit, albeit this rule, despite being a law, is like the filibuster where a majority of Senators can change the rules, or their interpretation, at anytime (changing the rules is the “nuke option” that Joe Lieberman threaten to use to stop real Democrats from rejecting Alito and Roberts as Judges). Using reconciliation eliminates the possibility of a filibuster, meaning Republicans would only need 51 votes to repeal that portion of the law – but could they, at the same time as repealing the mandate, repeal the whole law? Well that is what Jim DeMint and Senate GOP aides are saying is the plan, with Heritage’s Mike Franc agreeing that “the whole bill is now germane as a revenue bill and not subject to any Senate parliamentary point of order to strike non-mandate items from any repeal bill”.
If on appeal to the Chair of the Senate (the VP who presides over the Senate) the Chair rules reforms of the Insurance industry and mandated purchase of insurance (ignoring the tax penalty for the moment) don’t make the bill purely or primarily non-fiscal in nature, reconciliation can be used to remove the whole bill. But would the Chair so rule?
If the GOP plays by the current rules and attacks the pieces of the bill that are fiscal and thus could be in a reconciliation bill, Health insurance subsidies, Medicare payments, Medicaid funding for states and excise taxes on high cost insurance plans all leap out as candidates for repeal via reconciliation. So you could get rid of insurance subsidies but you’d still have the mandate, albeit you could get rid of the penalty for ignoring the mandate. But would the insurance companies still love you after you did this? Take away the Federal aid for the expansion of Medicaid and no state would join the program – and that would please the GOP base and appears to be doable legally and politically.
More likely the GOP will follow Joe Lieberman’s “nuke” approach but this time pull the trigger to get rid of the whole bill – change the rules (why talk about the effect on the deficit?) or overrule the parliamentarian if he were to deem a given change out of line (heck Trent Lott fired then-parliamentarian Bob Dove when he was displeased with his rulings and CBO findings about increasing the deficit could be ignored). And the politics for Democrats to say “not fair” – not really important to begin with – are clouded by the fact that after the Senate passed its bill and the House agreed to the Senate bill, the House passed changes and those changes were agree to by the Senate via reconciliation – with the “after the House agree” part of this statement clouded by the procedure used in the House to pass both the acceptance of the Senate Bill and the modifications in one vote.
Of course Romney has said that if elected, he will immediately grant states waivers from the law, then work with Congress to repeal it, but having control of the Senate makes total repeal more likely, albeit Red State Dem Senators are now sounding like loyal GOPers ready to “fix the law” – so getting control of the Senate may be not that critical.