The Relationship Between Health Care Reform and the Supreme Court Confirmation

By Kelly McCutchen

Be careful when you set a new precedent, because your decision could come back to haunt you.

Senate Democrats executed the first partisan filibuster of a U.S. Supreme Court nominee in our nation’s history this week. In response, Senate Republicans are expected to vote to change Senate rules to allow confirmation by a simple majority vote – the “nuclear option” – instead of the current 60-vote majority rule.

Republicans cite precedent to justify their actions. Democrats changed Senate rules in 2013, ditching the 60-vote rule to allow a simple majority vote on Cabinet nominees and lower-court judges. The Wall Street Journal cites a floor speech by Sen. Elizabeth Warren (D-Mass.) on Nov. 13, 2013, where she called the Republican filibusters “naked attempts to nullify the results of the last Presidential election, to force us to govern as though President Obama had not won the 2012 election.” She added, “Senators not only have the right to change the filibuster rules, Senators have a duty to change the filibuster rules.”

Last October, Sen. Tim Kaine (D-Va.), Hillary Clinton’s running mate, stated Democrats would invoke the nuclear option if Republicans blocked Clinton’s Supreme Court nominees.

What has this to do with the attempt to pass a health care reform law? Because the underlying debate over health care that was never fully and publicly discussed was whether to invoke the equivalent of the nuclear option to pass a full repeal of Affordable Care Act, aka ObamaCare.

Some background: The Affordable Care Act (ACA) was originally passed in the Senate 60–39 on December 24, 2009, after a vote to end a Republican filibuster. The House then passed the Senate bill 219–212 on March 21, 2010, reluctantly accepting the Senate version because they could not make any changes: Republican Scott Brown had been elected in the interim (January 19, 2010) in a special election to replace Ted Kennedy. That gave Senate Republicans the ability to filibuster any changes. To placate House Democrats, a second bill was passed by both chambers using the “reconciliation” process that only requires a simple majority vote but is limited to budgetary items.

Fast forward to 2017 and the Republican American Health Care Act (AHCA). The primary criticism from many conservatives is that the AHCA bill did not fully repeal the ACA, especially the insurance regulations,[1] the primary reason premiums have increased under the ACA.

Table 1 shows some ACA insurance regulations and their impact on premiums; Table 2 shows the change in premiums in Georgia before and after the passage of the ACA.

Table 1: Impact on Average Premiums from Insurance Regulations in the ACA
Guarantee Issue 15% to 30% increase
Community Rating (1:3 Age Ratio) 19% to 35% increase for those under age 35, 4% to 9% decrease for those over age 55
Essential Health Benefits 8% increase
Actuarial Value 8.5% increase
Source: Heritage Foundation


Table 2: Unsubsidized Premiums in Georgia Before and After Passage of the ACA
January 2013
Annual Premium / Maximum OOP
April 2017
Annual Premium / Maximum OOP
Single male, age 30 $1,293 / $7,000 $2,906 / $7,150
Single female, age 30 $1,712 / $11,000 $2,906 / $7,150
Family of four, parents age 40 $5,386 / $19,000 $9,796 / $14,300
Couple, age 55 $6,975 / $15,000 $11,419 / $14,300
Source: U.S. Government Accountability Office, 2013; Kaiser Health Insurance Marketplace Calculator 2017, calculated based on the Atlanta region, Silver Plan, no subsidies; OOP = Out of Pocket


Many Republicans were justifiably concerned that leaving these insurance regulations in place would keep premiums high, infuriate their base and cause many of them to be defeated in the 2018 midterm election.

Certainly all Republicans knew this risk, so why were these regulations left in place? Because a majority of the caucus believed 1) any ACA repeal would not gain the Democratic support to reach the 60 votes necessary to overcome a filibuster and 2) any attempt to insert non-budgetary items in the bill would not be allowed under the Senate’s reconciliation process, which is the only way a bill could pass with a simple majority.

The Senate Parliamentarian initially rules on what is allowed under reconciliation, but ultimately the Vice President, as the Senate’s presiding officer, makes the final decision. If the Vice President were to overrule the Parliamentarian it would be the equivalent of the nuclear option and the likely end of the ability of a minority party to halt any legislation.

Principled conservatives have reasonable arguments on both sides of this issue.

Supporters of the nuclear option argue 1) failing to fully repeal the ACA is a greater risk than eliminating the 60-vote rule, 2) there is no supermajority requirement in the Constitution supporting the 60-vote Senate rule[2], and 3) Democrats will use the Republican’s use of the nuclear option for the Supreme Court confirmation to justify bypassing the 60-vote rule whenever they regain control anyway.

Opponents argue that 1) the 60-vote rule is a limit on government and over time limits on government are good for preserving liberty and preventing expansion of government power, and 2) giving the Vice President this broad, discretionary power to exercise depending on whether or not his party controls the Senate weakens the separation of powers between the Executive and Legislative Branches by ceding power to the Executive.

The result was a bill that included a few regulatory changes, such as community rating (changing the age rating ratio from 1:3 to 1:5) and eliminating some of the Essential Health Benefits. Supposedly, the Senate Parliamentarian had ruled in advance that those exceptions would be allowed.

The best solution would have included repeal of each regulation in the bill, with a severability clause that would have not put the entire bill in jeopardy if any of them were ruled out of order. That was not attempted.[3]

The underlying issue, obviously, was whether to abandon the 60-vote rule. Yet very little was heard publicly on this issue, and what was discussed was cloaked in legislative language that few Washington outsiders understand.

What the average person heard was that Congress proposed “ObamaCare Lite;” that Republicans were going soft on their promises to repeal ObamaCare, or Paul Ryan and/or Donald Trump and their allies in Congress didn’t really want to repeal ObamaCare.

Before Congress revisits health care reform, lawmakers must hold an honest, transparent, public discussion on the wisdom of invoking the nuclear option to fully repeal the ACA versus repealing as much as possible under the current reconciliation process. Reasonable people will disagree on the strategy, but this challenge is what must be debated if there is any hope of passing a bill.

[1] The often-cited ObamaCare repeal bill of 2015, which was passed under reconciliation and then vetoed by President Obama, also did not repeal any of the insurance regulations.

[2] The Constitution does provide for several specific situations where a supermajority vote is required.

[3]The House GOP Needs to Perform Quick Surgery on Its Health-Care Bill,” National Review, March 22, 2017

Kelly McCutchen is President of the Georgia Public Policy Foundation.