THE BLOG

Got Nails? Now What Happens to Obamacare?

11/06/2012 11:13 pm ET | Updated Jan 06, 2013

The nail biting is over. For those who hoped that a President Romney could repeal Obamacare on "Day One," sorry -- when he lost, you lost. But now that Obama has been re-elected, what might happen to the actual implementation of the Affordable Care Act? Will the opposition to President Obama's signature health care act fade now that he has gained a second term? Not for a minute.

First, the good news. Because the Senate remains in Democratic control (and Obama retains the presidential veto), the Republicans cannot completely kill the implementation of the ACA, although they will most certainly try to slow it down. One exciting piece of news for those who wanted a public option is that the federal government intends to offer two nationwide plans that will be regulated by the Office of Personnel Management, the agency that manages all the plans for federal employees, including 20 nationwide plans. This was always an option in the ACA, but it is especially important in states where one or two health plans dominate the marketplace, providing consumers little choice or competition.

And in an odd piece of acting against their own interests, many states have stubbornly refused to start planning for the state-based health exchanges, so the federal government will do it for them. We won't know for a few weeks how many states actually end up refusing to implement the state-based insurance exchanges, because some Governors have said they would wait to decide until after the election. But it's sure to be fewer than the number resisting it before election day.

Second, many of the features of the ACA have already been implemented and would be difficult if not impossible to roll back. Keeping adult children on their parents' plan until age 26; eliminating preexisting conditions for children; closing the prescription drug doughnut hole for seniors; eliminating lifetime maximums -- to name a few of the more popular provisions.

So what could the Republicans do to destroy Obamacare with a Republican House of Representatives, a Democratic Senate, and Obama back in the White House? Unfortunately, they can do a significant amount of mischief. The law was passed through a process known as "budget reconciliation." This approach only requires a simple majority in the Senate, instead of the "super majority" of 60 needed to completely overturn the law. Budget reconciliation could overturn some of the financial aspects of the ACA (e.g. premium subsidies, money for the Medicaid expansion, etc.), but it could not overturn the insurance reforms such as eliminating pre-existing conditions for adults.

There are also a number of lawsuits proceeding through lower courts that could make it to the Supreme Court at some point. Whether SCOTUS would re-open the evaluation of the ACA is not known. Some Justices would probably like to take another swipe at it.

Bottom line -- no need to bite your nails any further at this point, but it is far from certain what might happen to Obamacare in the next year or two. The re-election of Obama is no guarantee that the law will retain all of its provisions. What we can guarantee is that, as citizens, you need to be vigilant and keep your eyes on the implementation of Obamacare -- if you care about seeing this law completely implemented.