WASHINGTON – The historic midterm election victory by Republicans does not signal the end of the Affordable Care Act, but now the law will very likely undergo the scrutiny that many in the GOP say it did not get as it made its way through Congress.
At press time, the Republicans had gained 60 seats in the House (with 9 races still undecided) and 6 seats in the Senate (with 1 still undecided). Even without the final results, the GOP now holds a majority in the House, with 239 seats, compared with 187 for the Democrats. Republican members of the Senate are still in the minority, but the current 52-46 Democratic margin is much slimmer than before the election.
Earlier this year, House Republican leaders and Senate Minority Leader Mitch McConnell (R-Ky.) vowed to "repeal and replace" the ACA if they regained the majority. A Republican-led House will not be able to make that happen alone; the Democratic-led Senate is unlikely to pass repeal legislation, and President Obama would likely veto any bill sent to him.
But Rep. John Boehner (R-Ohio), expected to be elected speaker of the House when the 112th Congress convenes in January, has indicated that the health reform law will be challenged in his chamber.
At a postelection press briefing, President Obama said he welcomed GOP input. "If the Republicans have ideas for how to improve our health care system, if they want to suggest modifications that would deliver faster and more effective reform to a health care system that has been widely expensive for too many families, businesses, and certainly our federal government, I’m happy to consider some of those ideas," he said.
But he said that the White House would not entertain a repeal debate.
Speaking at a postelection forum, Jim Slattery, a former six-term Democratic congressman from Kansas, said that he expected to see a repeal proposal. "The new Tea Party congresspeople and the leadership in the House will probably have to introduce some kind of resolution that would call for the repeal of ACA, and I think they know it’s going nowhere and it’s not going to happen, but they’re going to have to do that probably to satisfy political demand," said Mr. Slattery, now a lobbyist with Wiley Rein.
Mr. Slattery said that President Obama mainly has himself to blame for the Democrats’ poor showing in the election and for polling data indicating that half of Americans want to repeal the ACA. The president "failed to connect the dots" with Americans on how the law would benefit them, he added.
At the same forum, Nancy Johnson, a former Republican House member from Connecticut, said that she expected to see a number of oversight and investigative hearings on the ACA.
"The one thing that has to be done [in the next Congress] is, people have to regain their confidence in government and that’s not about policy, that’s about process," said Ms. Johnson, a senior public policy adviser at Baker Donelson. "Half the bill is terrific. But the other half wasn’t seen, and that created suspicion."
Rep. Boehner and other congressional Republicans have said they will keep some of the insurance market reforms – such as the prohibition on denying coverage for preexisting conditions – but will seek to throw out the mandate that individuals have health insurance coverage. That is a formula for disaster for the law – and for insurance companies, wrote Henry Aaron, a senior fellow at the Brookings Institution, in a perspective article published in the New England Journal of Medicine (2010;18:1685-7). Unless most Americans are covered, insurers might be bankrupted by the reforms, he said.
"In brief, the pledge to keep insurance-market reforms without both mandated coverage and subsidies is untenable," Mr. Aaron wrote.
Mr. Slattery agreed. "If you’re going to really reform the insurance industry with the preexisting-condition reforms, we have to have a mandate of some kind," he said.
The requirement that individuals carry insurance or pay a penalty, however, is the central issue being challenged by 20 states that are involved in a lawsuit against the federal government in the U.S. District Court in Florida. Virginia has also filed its own suit, a case that Mr. Slattery said he expected to rise to the Supreme Court.
And governors and attorneys general elected in five states also campaigned on the promise that they, too, would support overturning the mandate.
With money tight and millions of potential new Medicaid enrollees, governors from all parties may revolt against the mandate, said Ms. Johnson. "If you look at the basis on which states are challenging the mandate, it’s in part that it abrogates the federal-state partnership because it imposes burdens they can’t fulfill."