Given that the Supreme Court has narrowly ruled in favor of the Affordable Care At, its final potential test is now with the voters in the 2012 election. In a supreme act of hypocrisy Mitt Romney, the political father of this exact style of health care program in Massachusetts, and the rest of the Republican party have made repeal of Obamacare a fundamental campaign promise. It is a day one promise from the Romney campaign.
If Romney wins and Republicans pick up solid majorities in both houses of Congress they can and likely will repeal the law. Don’t believe anyone claiming that some arcane Senate custom will stop a determined majority simply because they don’t have 60 votes. Far too many reporters and pundits blindly accept the idea mere Senate customs are rules, and they have absolutely no understanding how technically easy it is for the Senate majority to complete reinterpret any rules they want.
The important thing is that the sole judge of what any Senate rule actually means is a simple majority of Senators. A majority can effectively rewrite the rules at any time. The so called “nuclear option” is simply a majority agreeing to accept a new interpretation of what some Senate rules.
Republican are promising to use reconciliation to repeal the law with a simple majority. Would doing that violate the parts of the Byrd rule? From my perspective it might, but ultimately my opinion on the matter doesn’t mean squat. Does it matter what the Senate Parliamentarian thinks? No, he only advises the Senate, but the actual power to decide what violates the Byrd Rule resides with the presiding officer, who in this scenario would be a Republican. The majority can also always replace the Parliamentarian if they want. There is no legal reason the Republicans can’t simply reject every point of order the Democrats raise against a reconciliation bill to repeal the ACA.
The Republicans have repeatedly promised to repeal Obamacare if they win this year. They technically would have the power to if they are willing to play fast and loose with Senate customs. That makes the 2012 election the last real potential hurdle for the law. After this election, the law begins full implementation before the next one, which makes full repeal infinitely more difficult from both a political and policy perspective.