Ted Cruz may have discovered a way to totally change Obamacare without 60 Senate votes
Democrats tend to love sneaky lawyer tricks because their side is so good at them. The passage of Obamacare under the Senate rules governing “reconciliation” is the most prominent example of creatively applying the rules to get what they want.
But it turns out that there are some really smart and creative legal minds on the GOP side, and now that the GOP runs the Senate, the sauce for the Democrat goose also flavors the Republican gander, if that isn’t too disagreeable an abuse of metaphorical license. Ted Cruz is one such legal mind; in the words of legendary Harvard Law School Professor Alan Dershowitz, “…one of the best students I ever had.”
Parker Lee reports for Independent Journal Review on how that legal mind of Senator Cruz may have come up with a game changer for Obamacare.
Sen. Ted Cruz (R-TX)...now says he's found a decades-old rule that he hopes will allow Republicans to pass a more thorough, far-reaching health care reform bill.
Traditionally, it has fallen to the parliamentarian — who advises the Senate “on the interpretation of its rules and procedures” — to determine what should and should not be considered a reconciliation bill.
According to Cruz, however, a provision in the Congressional Budget Act of 1974 would allow Republicans to both drastically increase the scope of their new health care reform bill and still let it fall under reconciliation by essentially bypassing the parliamentarian and leaving that decision up to Vice President Pence.
As Cruz put it:
“Under the Budget Act of 1974, which is what governs reconciliation, it is the presiding officer, the vice president of the United States, who rules on what’s permissible on reconciliation and what is not.
That’s a conversation I’ve been having with a number of my colleagues."
Who exactly those colleagues are remains unclear, though it's known that the Texas senator did meet with both President Trump and Vice President Pence over the course of the last week:
Cruz said this process would allow Republicans to include a number of provisions that would make the health care reform bill much more attractive to conservatives.
For example, Cruz notes that Republicans could “repeal all of the insurance regulations in Obamacare that have increased premiums,” in particular one that decreased competition by preventing insurers from selling across state lines.
Still, it remains to be seen whether or not Cruz's colleagues will be eager to employ the senator's “radical” interpretation of the rule. Being similar to 2013's filibuster reform, it runs the risk of “fundamentally altering the way Congress works.”
In terms of fellow Republicans eager to see a more thorough replacement of Obamacare, however, Cruz certainly has plenty of allies.
Sure there would a storm of outrage and claims that the Cruz interpretation, as voiced by VP Pence as presiding officer of the Senate, was illegitimate. Yet, the passage of Obamacare by reconciliation stands as an example of how the rules can be flexible. The arcana of Senate rules and precedents are not the sort of thing to stir up a mob. Try getting activists to turn out for a cause whose justification that puts them to sleep with a boring law school lecture.
As for the notion of changing the way the Senate works, that is inevitable. The Democrats have not demonstrated any fealty toward the filibuster, having junked it for judicial appointments to the federal bench below the SCOTUS. As Karin McQuillan noted here two days ago,
The sixty vote requirement is not in the Constitution. It’s just a Senate rule. A rule that McConnell refuses to question. A rule that will destroy the Trump Presidency more thoroughly than Obama and the Deep State.
Trump is a reform president, and Reform Number One is fully replacing Obamacare, not "Obamacare Lite" to be followed (maybe, maybe not) by phases two and three, where the good stuff supposedly will happen. The GOP base is sick and tired of reforms scheduled for a "later" time that never comes.
Cruz’s approach would still keep the filibuster intact, but would strengthen the hand of the party holding the presidency, since the veep would in essence replace the parliamentarian – a nonpolitical office that really shouldn't have such a crucial political function. The prospect of empowering the presidency over a Senate minority is a mixed bag for Republicans that might face a Democrat president pushing a policy that the GOP might want to stop with a filibuster.
But does anyone really believe the Democrats would not once again limit filibusters if it suited their goals? Why be suckers, allowing the Dems to block total re-doing of their flawed and harmful legislation?