Repeal and Replace

Twenty-six is a magical number in the debate over health care reform.

Twenty-six is the number of times the House GOP has voted to repeal, raze or strike funding for the Affordable Care Act (ACA), which became law in 2010.

Twenty-six million is the number of people who will still find themselves without health insurance under the ACA.

In other words, despite all of the commotion from House Republicans that they would annul President Obama's health care law, they've been unsuccessful. So far. To be fair, that's mostly because such a plan doesn't stand a chance of making it through the Democratically-controlled Senate. Plus, there is virtually no chance that Mr. Obama would sign any such repeal.

On top of that, Democrats still fall short in their effort to provide "universal" health care coverage for all Americans. The structure of the new health law basically helps provide coverage for about half of those who lack insurance.

And you can bet that the numbers 26 and 26 million will emerge as key figures batted around if the Supreme Court decimates the ACA with its decision on the constitutionality of the law in late June.

Health care reform was a crystallizing event in the 2010 midterm elections. It's what melded traditional Republicans with those aligned with the tea party movement. They viewed the effort as a gross overreach of government. And Congressional Republicans are prepping to make this year's elections about health care reform, too. Many Republicans are already jockeying for position if the High Court takes a blow torch to the law. Republicans believe they can exhibit such an opinion as concrete evidence that the president and Congressional Democrats wantonly abandoned the Constitution when crafting the 2010 statute. With a favorable ruling, they'll assert that their efforts to defeat the law are now fully vindicated.

But this outcome creates special issues for both parties.

The problems for Democrats are more clear-cut. Democrats who voted for the health care law should brace for an onslaught of ads, reminding voters of their support. An outright Supreme Court ruling that the health care law is unconstitutional may seem like an unmitigated victory for Republicans. But not entirely. That outcome creates problems for the GOP. But as the saying goes, these are the types of problems the Republicans would like to have.

In the fall of 2010, House Republicans authored the "Pledge to America," a political document drawn-up for the midterm elections. A cousin to the 1994 "Contract with America," the pledge was a promise to the public of what to expect if they elected Republicans to the House. A key tenet of the pledge was "repeal and replace." That's where the GOP told the public that it would repeal the Affordable Care Act and replace it with something else.

The willingness to draw up an alternative to President Obama's plan marked a significant pivot for the GOP. In 1994, Republicans helped derail President Clinton's health care reform proposal, arguing that the system was in no need of change. Today, there are few Republicans who would suggest that the contemporary health care system isn't begging for major surgery. When members of the House GOP brass wrote the pledge, they were canny enough to know that simply demanding "repeal" wasn't enough. After all, despite the howls from the right, many Americans of all political stripes approve of the ACA's provisions to dramatically increase the percentage of those who are covered, the ability of employees to transfer coverage from one job to another and enhanced coverage options for students well into their twenties.

Therefore, the nettlesome part of the Pledge to America is the "replace" clause.

House Republicans strategically engineered the effort to repeal the ACA as one of the first votes of this Congress. Then press scribes started to where the "replace" plan was.

Senior GOP leadership aides artfully pointed out that the full law had not been "repealed." Yes, the House GOP overwhelmingly voted to repeal the bill. But this wasn't going anywhere in the Senate. Thus, House GOPers stated there was no onus on them to immediately substitute the Affordable Care Act with something else.

But if the Supreme court takes a sledgehammer to the ACA, that day of reckoning could come soon.

Senior House Republican leaders along with the three House panels with jurisdiction over health care (Ways and Means, Education & the Workforce and Energy & Commerce) have discussed potential options for replacing the health care law should the High Court rule in the GOP's favor. But lawmakers and aides alike all say there's no concrete roadmap yet - mainly because they just don't know what decision the Supreme Court will hand down. And that's to say nothing about veritable GOP members who can't seem to coalesce around a single strategy.

However, past is prologue. The GOP has made a few important forays into the health care debate which could serve as compass pointing to the direction Republicans may go.

For starters, look to the fall of 2009 when the Democratically-controlled House okayed the initial version of the ACA. As a part of the debate structure, Democrats allowed the GOP to offer a "substitute" amendment, which quickly became known as the "the Republican alternative." By its nature, a substitute amendment strips the existing text of the underlying bill (in this case, the Democrats' health plan) and inserts a brand new piece of legislation in its place.

In the months prior to final passage of the health care law, Republicans feared Democrats could portray them as "non-participants" in the debate. So it was incumbent for the GOP to draft a measure to counter the Democrats' package.

The GOP did. And the plan was skeletal, compared to the several-thousand page behemoth unveiled by Democrats. Naturally, Democrats railed against the thread-bare GOP approach. But this was an effort in contrast as Republicans fundamentally disagreed with a massive, one-size-fits-all approach to fixing the nation's health care system. In turn, the Congressional Budget Office (CBO) helped bolster Democrats' opposition to the GOP bill when it found that the Republican alternative only increased health care coverage for a few million Americans.

However, Republicans trumpeted provisions in the bill which cut health care price tags induced by medical malpractice suits. They also declared their bill was much cheaper, costing only $61 billion compared to the at least $1 trillion effort proposed by Democrats.

But here's the rub: if the Supreme Court deep-sixes the entire law, don't expect Republicans to immediately trot out a comprehensive bill to "replace" the current law. But they will do something.

"That (the ACA) was the Democrats' approach to what they see as the problem," said a senior House Republican leadership aide. "We don't view the problem the same way as they do. So expect us to take a completely different approach."

Here's what that means if your "senior House Republican leadership aide" decoder ring is on the fritz: Democrats believe in big fixes. We don't. Democrats wrote a prodigious, 2,000 page bill, which we then railed against. We even beat them up because no one had "read the bill." So, Republicans can't possibly produce a legislative equivalent that is equal in size and scope.

That means Republicans could trot out a series of smaller, focused bills to fulfill their "replace" obligation if the Supreme Court does the GOP's dirty work and effectively "repeals" the Affordable Care Act.

One should anticipate Republicans to again hold another wholesale "repeal" vote on the bill. Then expect them to draw up measures which target portions of the health care law the Supreme Court might bump. Republicans could push legislation which would allow Americans to purchase health care insurance across state lines. Some Americans live in states with strict insurance regulations. But the GOP believes that allowing people to buy plans from other parts of the country could enable customers to save money. Plus, in an effort to foster competition (and drive rates lower), Republicans believe enhanced competition could encourage high-regulation states to peel back some of those restrictions.

Also on the table: efforts to allow clusters of small businesses to buy insurance policies as a team. The idea is to grant those firms tax deductions as a reward for banding together. One may also expect to hear about health savings accounts and limiting malpractice litigation.

"You will not see from us a 2,700-page comprehensive rewrite of one-sixth of our economy," boasted Senate Minority Leader Mitch McConnell (R-KY).

"Repeal and replace" was the mantra of Congressional Republicans in 2010. It served them well at the ballot box that year. Republicans see the ACA as the gift that just keeps giving. So they're hoping history repeats itself as they contrast the Democrats' 2009-10 effort with their alternative approaches.

But there's infighting in Republican circles that the GOP is no longer committed to repealing "Obamacare." Taking internal fire this week, House Speaker John Boehner (R-OH) had to reassert the GOP's legislative commitment - at least to repeal. And regardless of what the High Court does.

"Our plan remains to repeal the law in its entirely," said Boehner in a statement. "Anything short of that is unacceptable."

So even while Republicans hoped to wield the ACA against Democrats as an electoral wedge, they're finding they need to deploy health care to shore up their base this fall as well.