Supreme Court Ruling Doesn’t Stop Efforts to Repeal, Replace Obamacare

Sam Karnick Heartland Institute
Published July 24, 2015

In June, the U.S. Supreme Court ruled in favor of the Obama administration’s move to make federal tax subsidies available to all Americans, regardless of whether they purchased health insurance in a state-established or federal health insurance exchange.

Rather than end the political battle over the unpopular program, the court’s 6–3 ruling in King v. Burwell appears to have strengthened the motivation of Obamacare’s strongest critics by making it clear only Congress can repeal and replace Obamacare.

The Court’s decision, which the plaintiffs argued directly contradicted the wording of the Affordable Care Act, averted a change that both proponents and critics agreed would have made the system completely unworkable.

Now both sides are gearing up for resumption of the political fight over Republicans’ promises to repeal and replace the law, which had previously been muted by the pending Court decision.

Budget Reconciliation Option

Peter Ferrara, a senior fellow for entitlement and budget policy at The Heartland Institute, which publishes Health Care News, says the Republican majorities in the U.S. House and Senate can pass legislation repealing Obamacare and enacting free-market health care reforms to replace it using the budget reconciliation process, which is not subject to a Senate filibuster.

“That would be entirely fair game, because Obamacare was passed using reconciliation,” Ferrara said.

Republicans are considering plans for a complete repeal-and-replace law based on freedom of choice, market incentives, and competition, which would assure essential health care for all, with no individual mandate, no employer mandate, and trillions of dollars in reduced government spending, taxes, and regulatory cost burdens, says Ferrara.

“Obama would still veto the repeal and replace passed by reconciliation,” he said. “But in the process, the public would be educated about what the alternative to Obamacare is, and I am confident large majorities would be convinced that the free-market approach would be much better for them than Obamacare’s government-controlled and -dictated medicine.

“I am sure the Democrats would consequently suffer a grievous price in next year’s elections for Obama’s ideological stubbornness and extremism on the issue,” he said.

Slowed but Not Stopped

Republicans are in a holding pattern right now, says Tevi D. Troy, president of the American Health Policy Institute, as they try to figure out what can be done without a veto-proof 60 votes in the Senate and facing a president who has promised to veto any real reform of his signature law, despite its obvious flaws and public discontent toward it.

“Obviously the ACA will not go away while Obama is president and has the veto to protect it, but … [Republicans] do need to show some progress toward the goal of repeal,” he said.

Troy says it’s important for Congress to go on the record soon as offering a way to repeal and replace Obamacare, because there is a limited time before the public will come to accept the system as established, regardless of any flaws.

“Let’s say there’s a law passed and nobody does anything about it for 10 years, with no votes for disapproval, and suddenly you decide to vote now to repeal it. I don’t think that would have much of a chance,” he said.

There are positive steps the Republicans can take while Obama is still president, Troy says. Potential reforms with current bipartisan support include repeal of the medical device tax and the “Cadillac Tax,” an excise tax that increasingly affects non-wealthy taxpayers with high-end employer-based health plans.

S. T. Karnick ([email protected]) is research director for The Heartland Institute.

Internet Info

Benjamin Domenech, “Three Outcomes From King v. Burwell,” Consumer Power Report, July 1, 2015:

“Heartland Institute Experts React to Obamacare Decision by Supreme Court,” The Heartland Institute, June 25, 2015:

Kenneth Artz, “Obamacare Subsidies Survive Supreme Court Challenge,” Heartlander, June 25, 2015:

Peter Ferrara, “How Republicans Can Cut Through the Obamacare Chaos After King v. Burwell,” Heartlander, April 14, 2015:

Paul H. Keckley, “Looking Past King v. Burwell,” The Keckley Report, June 29, 2015: