POLITICS
11/04/2014 06:24 pm ET Updated Nov 05, 2014

A Republican Congress Can't Repeal Obamacare. That Won't Stop Them From Trying

Republicans have been chomping at the bit to repeal Obamacare since the instant President Barack Obama signed it into law on March 23, 2010. With control of the Senate assured after Tuesday's elections, is the GOP poised to undo the Affordable Care Act "root and branch," as soon-to-be Senate Majority Leader Mitch McConnell (R-Ky.) is fond of saying?

In a word: no. Even McConnell has admitted as much. And as McConnell knows from the hundreds of thousands of Obamacare enrollees his home state, repealing the law would snatch health coverage from millions, something Republicans might not want to actually have to answer for.

But that won't stop a Republican-controlled Senate from joining the GOP-led House -- which has voted to repeal, defund or otherwise derail the law more than 50 times -- in bringing up repeal for at least one vote. Obama would then swiftly veto it, but not before Democratic senators were forced to cast a vote very directly in support of Obamacare, which remains generally unpopular.

There are also some elements of the Affordable Care Act a Republican Congress could target, either symbolically to highlight Obamacare's real and perceived shortcomings, or as a means to erase or amend parts of the law they may believe are vulnerable. Some Senate Democrats likely would even join them on some votes, like to repeal a tax on medical devices.

That would leave Obama with a tough decision to make, especially if alterations to Obamacare are included as part of larger legislation he supports. And it's not as though Obama is totally opposed to changing the health care law. His administration has unilaterally postponed or modified big parts of the law, such as delaying its requirement that large employers offer health benefits to workers or pay tax penalties. And Obama has signed more than a dozen bills that made changes to the Affordable Care Act, according to the Congressional Research Service.

Of course, if the GOP Senate behaves anything like the GOP House has (and like Republicans in the Senate did while in the minority), it could attempt all manner of shenanigans to disrupt the implementation of the law, including withholding funding. And it certainly wouldn't be interested in helping Obama fix real problems with the law to make it function better. Plus, there will be hearings. So many hearings.

Hey, maybe Republicans will finally unveil their long-awaited Obamacare alternative at some point!

No matter what, there's virtually zero chance Obamacare will go away while its namesake occupies the Oval Office. But that doesn't mean the Affordable Care Act will look exactly the same when the next president is sworn in as it does today.

Here are some of the most likely provisions of Obamacare a fully Republican Congress could take aim at.

Individual Mandate
The requirement that nearly all Americans obtain some form of health coverage or face a tax penalty is the granddaddy of them all. Sure, this idea originated with the conservative Heritage Foundation back in the '90s, but it's the least popular part of Obamacare and is an affront to liberty in the eyes of tea party types. It also was the subject of a lawsuit that went all the way to the Supreme Court, which upheld it. Undoing the mandate would devastate the rest of the law because it would take away a big incentive for healthy people to buy insurance, leaving the companies with more costly customers and forcing them to jack up prices to unaffordable levels.

Employer Mandate
The Affordable Care Act requires all companies with at least 50 employees to offer health benefits to everyone who works at least 30 hours a week. Businesses hate it. Republicans hate it. Even some leading liberal advocates for Obamacare wouldn't mind seeing it go. Obama himself delayed full implementation of this provision from 2014 to 2016, and scraping it would have a negligible effect on how many Americans have health insurance.

Medical Device Tax
Somehow, a 2.3 percent sales tax on medical devices like pacemakers became a cause célèbre among Republicans -- and Democrats from states like Minnesota that are home to big device manufacturers. Getting rid of the tax has almost happened a few times, and 32 Democratic Senators joined all Republicans voting in favor of repealing it in March 2013. Eliminating the device tax wouldn't change any of the major parts of Obamacare, either.

Independent Payment Advisory Board
One of the many things falsely dubbed a death panel by Republicans, the so-called IPAB was supposed to be a key tool to reduce health care costs. The 15-member, presidentially appointed and Senate-confirmed panel is tasked with issuing recommendations to cut Medicare fees to medical providers to keep the program's spending in check. If Congress doesn't override those plans with cuts of its own, IPAB's become law. To Republicans, it's tyranny. To Obamacare, so far it's been pointless. Obama never named anyone to the board, and Medicare spending has been so low lately, they wouldn't have had anything to do anyway.

"Insurer Bailout"
The Affordable Care Act includes provisions designed to protect health insurance companies that get unlucky and sign up too many expensive, sick customers. Wonks call these policies the "three Rs" -- reinsurance, risk corridors and risk adjustment -- but Republicans call them an insurer bailout, because of course they do. (President George W. Bush had no such qualms about these things when he made them part of his Medicare prescription drug law in 2003). Doing away with this protection could destabilize Obamacare's health insurance exchanges by forcing insurers to eat big losses, and maybe scaring them away entirely.

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