Heritage Action Memo: How to Repeal All of Obamacare by Inauguration


To:            Interested Parties
From:       Heritage Action for America
Date:        December 5, 2016
Subject:   How to Repeal All of Obamacare by Inauguration

Republicans have promised voters a full repeal of Obamacare since 2010, when the health care law was first passed. In fact, since Republicans took control of the House in 2011, Congress voted over 60 times to repeal parts or all of the law. Republican congressional leadership and President-elect Donald Trump have all promised to repeal the law.  

There are no more excuses to be had. The Republican-controlled Congress has every tool that it needs to overcome any and all obstacles that stand in the way of fully repealing Obamacare. Now that voters have given Republicans control of the House, Senate, and the White House, this campaign promise can and must quickly become reality and the American people should hold them, and President-elect Trump, accountable for delivering on that promise.

In fact, it is entirely possible for the Republican Congress to have a bill fully repealing Obamacare on President-elect Trump’s desk by the time he takes office on January 20. This memo outlines the path that Congress can take over the next two months to ensure a bill repealing Obamacare is the first thing President Trump signs – and that he signs it on Inauguration Day.  


Three years ago, Senate Republicans committed to using the budget reconciliation process to repeal Obamacare.  Budget reconciliation is a legislative tool that Congress can use in conjunction with the congressional budget process. When the House and Senate adopt a budget resolution (which does not get sent to the President for signature) they can include “reconciliation” instructions, setting up an expedited process to achieve the savings outlined in the budget resolution.  Unlike regular legislation, a reconciliation bill only needs a simple majority to advance in the Senate. With 52 Republican Senators who have promised full repeal to their constituents, Senate passage should be guaranteed.

Reconciliation Battle of 2015

In 2015 the House and Senate passed a reconciliation package (H.R. 3762) that repealed most, but not all, of Obamacare.  During the process, Heritage Action argued that:

“Using reconciliation this year is important because it should be a trial run for 2017, when we will hopefully have a President willing to sign a full repeal bill. If we are short of 60 votes in 2017, then we will need to use the reconciliation process to accomplish this. If we do it now and do it right, we can ensure full repeal is a fait accompli in 2017.”

While the initial, House-passed version of H.R. 3762 in 2015 fell far short of true repeal, the Senate amended the bill to make it a more robust repeal package. However, even the Senate Amendment to H.R. 3762 left the costly insurance mandates in place. H.R. 3762 was ultimately vetoed by President Obama on January 8, 2016. Heritage Action believed that this effort would 1) help set the terms of the presidential election and 2) prove that the process works:

“First, forcing a presidential veto of a bill repealing Obamacare will cause every presidential candidate to answer a simple question: What would you have done? Without exception, every candidate serious about securing the Republican nomination will answer: “I would have signed it in a heartbeat.”

Second, the process of drafting and passing the reconciliation measure through both chambers will serve as a trial run. More importantly, it will reaffirm the Republican-controlled Congress’s commitment to sending a bill repealing Obamacare to the president’s desk in 2017 — when it will hopefully be signed into law.”

The Path(s) Forward

1. “One Sentence” Repeal: The ideal and achievable first option should be for Congress to pass a one sentence bill that fully repeals the Affordable Care Act.  

Paul Winfree of The Heritage Foundation laid out the “two budget” approach that Congress can use to set up a repeal of Obamacare through the reconciliation process in his recent Politico article How to Repeal Obamacare: A road map for the GOP:

“Last year, Congress failed to pass a budget for fiscal year 2017, creating an opportunity for Congress to pass two budgets next year, rather than just one. This gives Republicans two shots at getting filibuster-proof reconciliation bills to Trump.

The first budget is simple. The spending and tax levels include one assumption: The ACA is repealed. That ACA repeal budget should also include instructions to the relevant committees in Congress. Congress should be able to easily pass a budget resolution with these criteria with simple majorities in each chamber and begin the process of work on the reconciliation bill before Inauguration Day. This will set up the ability for Congress to pass a reconciliation bill repealing all the budgetary components of the ACA immediately after Trump is sworn into office.

In summary, the three main steps in this preferred option of full repeal are: 1) The House and Senate pass a FY17 budget resolution that assumes the full repeal of Obamacare with reconciliation instructions (with the intention of doing a second budget later in the year for FY18); 2) The House then originates and passes a simple one-provision reconciliation bill that fully repeals Obamacare; and 3) The Senate takes up the House-passed reconciliation bill and passes it with a simple majority vote, sending it to President Trump’s desk by inauguration.

2. 2015 Repeal Bill Plus the Insurance Mandates: The second option (which also uses the two budget process, as does the third) is to take the language from last year’s effort, H.R. 3762, and then insert the repeal of the insurance mandates. Paul Winfree also explained in his Politico piece why and how this can be done:

“The main problem with last year’s reconciliation bill is that it maintained the ACA’s insurance [mandates]. These include the rules that all insurance meet or exceed Washington-dictated standards for what benefits they cover, as well as pricing rules that substantially raised the price of insurance for younger and healthier people….The repeal effort therefore must address these insurance market regulations. One way would be to include the repeal of those regulations in the reconciliation bill.

…it is clear that those rules are inseparable from the rest of the ACA’s structure. In fact, the Obama administration argued this before the Supreme Court in King v. Burwell, the case over whether enrollees who buy insurance through the federal exchange are eligible for subsidies. As a result, Congress may repeal those regulations via reconciliation.”

It is critical to press for the inclusion of the insurance mandates with the Senate for two reasons. First, because the insurance mandates are some of the most problematic components of Obamacare and are crippling the health care market. Second, using reconciliation to repeal the insurance mandates was never adjudicated with the Senate parliamentarian, and many Senate budget experts argue that repealing the insurance mandates is definitely budgetary in nature. As Heritage Action argued during the 2015 reconciliation process:

“The Senate has not adjudicated full repeal or many of the questions involved in passing a robust repeal bill. Those suggesting that it has are misinformed.

Regardless, the Senate should not be used as a foil to convince House conservatives not to do all they can on reconciliation. The House should pass a strong repeal bill and allow the Senate to navigate the Byrd Rule if they must.”

3. 2015 Repeal Bill: One last option is to simply re-pass the same bill as last year, which repeals the vast majority of Obamacare including the individual and employer mandates, the coverage subsidies, and the Medicaid expansion.  However, as mentioned, the 2015 repeal bill did not repeal the costly insurance rules, regulations, and mandates on plan offerings that have contributed to premiums skyrocketing, healthcare costs rising, and insurance plans being canceled. Therefore it is important that this option is seen as a floor, not a ceiling, for what the Republican Congress and President Trump can accomplish.

Overcoming Obstacles

There are two main, and interconnected obstacles, that may need to be overcome in the Senate: the Byrd Rule and the Senate Parliamentarian.

The Byrd Rule: The reconciliation process in the Senate can be convoluted and based on subjective criteria. The Byrd rule, established in 1985 and made permanent in 1990, sets up a six part test to ensure ‘extraneous’ provisions are not added to a reconciliation measure. However, a House-passed one-provision reconciliation bill that fully repeals Obamacare could withstand scrutiny.

Deficit Impact: Some have pointed to a previous score from the Congressional Budget Office (CBO) to suggest full repeal of Obamacare would increase the deficit and thus would not be permissible in the Senate.  The Congressional Research Service explains that “Determinations of budgetary levels for purposes of enforcing the Byrd rule are made by the Senate Budget Committee.” In other words, for determining the budgetary impact of a reconciliation measure the CBO is not the official scorekeeper.

As the ultimate “scorekeeper” of the reconciliation bill, the Senate Budget Committee Chair should request an estimate from the CBO on the Medicare double count — a budget gimmick that Republicans rightly condemned in 2009 and 2010.  With that number in hand (at least $550 billion over the ten-year budget window) the chairman could accurately assert that full repeal actually reduces the deficit absent the double count gimmick.  The Congressional Research Service notes that there is precedent for not using the official CBO score:

“Although the Budget Committee and each instructed committee receives cost estimates from CBO and the JCT, it is the Budget Committee’s responsibility and prerogative to assess committee compliance on the basis of spending or revenue levels. In measuring compliance, the Budget Committee sometimes will make adjustments to the estimates provided by CBO or the JCT. One such adjustment, which occurred in 1995, involved a change in the enactment date assumed by CBO, which shortened the time available in FY1996 for the sale of the Naval Petroleum Reserves.”

Based on the text of the Byrd rule itself and previous precedent, a one-provision reconciliation bill that fully repeals Obamacare would not include any extraneous provisions.  There would be one “provision,” and it would clearly be budgetary in nature.  Some have suggested that the parliamentarian would “look behind” the single provision in the reconciliation measure, but doing so would break with precedent.

Scope: Many forget that the Personal Responsibility and Work Opportunity Reconciliation Act of 1996  (i.e. welfare reform) was passed using reconciliation.  That bill converted low-income assistance programs, including the Aid to Families with Dependent Children (AFDC), into a single block grant under the new Temporary Assistance for Needy Families (TANF) program.

AFDC, which contained provisions that had both budgetary and non-budgetary effects, was authorized under Title IV-A of the Social Security Act.  The welfare reform bill repealed the entire program with one provision:


(a) IN GENERAL.—Part A of title IV (42 U.S.C. 601 et seq.) is amended—

(1) by striking all that precedes section 418 (as added by section 603(b)(2) of this Act) and inserting the following:



When Senator James Exon (D-NE) did submit a list of extraneous provisions under the Byrd Rule on July 22, 1996, he did not include the section referenced above even though the section was extremely controversial at the time.  There was clearly a budgetary consequence to the repeal of AFDC and therefore it did not violate the Byrd rule prohibiting reconciliation measures that do not change outlays or revenues even though repeal of individual elements under AFDC would have.

Based on past precedent, a simple, one-provision repeal of Obamacare should withstand any Byrd rule challenge, whether on the question of deficit reduction or related to extraneous provisions.

The Senate Parliamentarian: The Senate Parliamentarian traditionally plays a large role in interpreting the parameters the reconciliation rules and procedures. She may require persuasion that repealing the insurance mandates do, in fact, serve a budgetary purpose and are therefore eligible for reconciliation.

However, the parliamentarian is an employee of the Senate with the job of providing advice to the presiding officer on historical precedents as applied to the matter at hand. Ultimately, the decision of whether or not a point of order that is raised against a provision repealing the insurance regulations lies with the presiding officer, and ultimately, the Senate as a whole.

If a senator raises a Byrd Rule point of order, a ruling of the presiding officer that runs counter to the precedents of the Senate, as noted above, can be appealed and overruled with a simple majority vote. Therefore, a majority of senators supporting repeal are needed for this strategy.

Obamacare’s Replacement

Some will argue that we must have a replacement plan at the same time as repeal, but they make this argument hoping to kill the momentum for repeal under the guise of repeal and replace. However, until we fully repeal Obamacare, Republicans will have a difficult time agreeing on a combination of replacement packages. Meanwhile Democrats would refuse to negotiate and instead do everything in their power to sink the replacement plan and therefore Obamacare repeal. Members who truly want to repeal Obamacare must insist on repeal immediately. The above preferred process gives Republicans the best chance to repeal Obamacare and honor their commitment to the people who put them in power – while providing plenty of time to enact a replacement plan. Then there will be a time of transition for Congress to pass a replacement bill.

For example, as Nina Owcharenko and Ed Haislmaier of The Heritage Foundation, explain in their recent paper, Preparing a Smooth Transition for the Repeal of Obamacare, Congress can:

  1. Maximize the reconciliation process for repeal
  2. Execute an aggressive regulatory rollback
  3. Accelerate state-level action to restore authority over health insurance markets.
  4. Begin the process for replacement

Specifically, the timeline suggested would be to “have the legislation completed by the end of 2017 so that the Administration can begin the regulation and implementation phase in 2018 for the 2019 plan year.” This would ensure that individuals who have purchased plans through the Obamacare exchanges have ample time to transition into private sector or employer provided coverage, which will ultimately be more affordable and provide better health insurance.


Congress can secure a historic conservative policy victory by using the reconciliation process to send repeal to President Trump in January.  There are no procedural excuses for not moving forward.  The only reason for delay and inaction would be an unwillingness to deliver on a six-year old promise to fully repeal Obamacare. Now that the American people voted to keep Republican majorities in both chambers of Congress and give Republicans the White House, Congress must act immediately to repeal Obamacare once and for all. There are no more excuses.   


How to Repeal Obamacare: A road map for the GOP (November 2016)
The Hill: A promise made to repeal Obamacare with reconciliation (May 2015)
Heritage Action: How to Repeal All of Obamacare with Reconciliation (July 2015)
Heritage: Why Reconciliations Can’t Be Used to Defund Planned Parenthood (September 2015)
IJ Review: GOP Has No Intention Of Ever Defunding Planned Parenthood (September 2015)
The Hill: King v. Burwell helps repeal Obamacare (October 2015)
Heritage Action: FAQ on Reconciliation Bill (H.R. 3762) (October 2015)
Lee-Cruz-Rubio: We Cannot Support this Bill (October 2015)

Please Share Your Thoughts

80 thoughts on “Heritage Action Memo: How to Repeal All of Obamacare by Inauguration

  1. Leave states out of health care Make it a purely federal program Do not have subsides of any kind Have everyone participate in a pay what you can program Have government pay hospitals and doctors as they treat patients and request payment

  2. Get the Federal Government out of the health care industry as it is not among the one of the powers delineated in the Constitution. As the Tenth Amendment clearly states: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[5]

  3. Repeal, effective when? if effective when signed into law, then everyone who dies due to lacking ACA is going to play 24/7 on the MSM like Ryan pushing Wheelchair Granny off the Cliff. There needs to be widespread tested alternatives In place, and while we are at it replace all the crony capitalism junk that led to ACA. Many of the problems are state law and cannot be repealed by Congress. ACA needs to be proved a failure by the market and the market needs to be proved a success to fully protect the public. I say use one line laws: Repeal the mandates 2) free up the free market 3) Have nation-wide town halls and decide what people want and do not want and how to pay for it.

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  6. Proposed Republican Solution to ObamaCare/ACA(Affordable Care Act)
    Cancel ACA, aka ObamaCare
    Kim Newlin·Thursday, December 31, 2015
    My Proposed Republican Solution to ObamaCare/ACA(Affordable Care Act) Cancel ACA, aka
    Voluntary Health Insurance System, no mandatory requirement or penalty
    Let all health insurance companies compete across state lines. A 10% surcharge on all health
    insurance polices will be used to create a pool of money to be split equally between Medicaid
    and for Malpractice victims.
    – Money for Medicaid*
    – Money for Malpractice Victims to be awarded by a mediation panel to be established by each
    State Insurance Commissioner**
    Each insurance company would be encouraged to offer up to four plans(single, married, married
    plus x amount per child added)(If costs are still too high for young persons of lower incomes and
    no employer health insurance, then one might consider the average of each plan type and subtract
    15% from average for young from 18-34, 35-49 would pay average and 15% would be added to
    ones between 50 and 64 since these plans offer no subsidies.):
    Cadillac/Platinum e.g., pay 90% of expenses with low co pays($20)and annual deducible
    amount($1,000)if PPO or 70% UCA non PPO
    Basic/Gold e.g., pay 80% of expenses with slightly higher co pays($35) and higher annual
    deducible amount($2,500) if PPO or 60% UCA non PPO
    Standard/Silver e.g., pay 60% expenses with slightly higher co pays($50)and higher annual
    deducible amount($5,000) if PPO or 50% UCA non PPO
    Catastrophic/Bronze e.g., pay 50% expenses with much higher co pays($75) and a much higher
    annual deducible amount ($10,000) if PPO 40% UCA non PPO
    All plans could offer optional health care for increased premiums (a la cart option that could be
    considered for each policy):
    – dental
    – eye care
    – plastic surgery
    – birth control
    – plastic surgery
    – maternity care
    – etc..
    All plans offered by all Health Insurance companies to individual and employers much meet the
    following conditions:
    Must accept preexisting conditions
    No lifetime limits
    All must offer certain basic services at no cost under each policy, types and amounts will further
    help increase or decrease the costs of each policy, e.g, Cadillac/Platinum many and the
    Catastrophic/Bronze, almost none.
    – All plans must offer an annual physical each calendar year at no cost, no co-pay, & without
    meeting the deducible.
    Kids to 22 if college BS, 24 if MS, 26 if going form MD or PhD(Doctorate)
    – All plans but the lowest(Catastrophic but could include it as an option at additional cost) must
    offer a drug plan benefit based on generic drugs preferred with various co-pays for each type of
    – All policies must pay the same Usual Customary rates regardless of age, no age discrimination
    for payments like now, when one reaches 65, pay on medicare rates, no fair to Doctors and
    Medical Facilities.
    – all insurers required to pay out 85% of insurance premiums annually
    – No bailout by the Federal Government
    – Other that ACA requires if significant I have missed.
    Another potential option would be to set up a National plan like FEHB(Federal Employee Health
    Insurance Plan) and let all health insurance companies compete and offer up to 4 plans, e.g.
    Cadillac, std, basic, catastrophic to help further drive down health costs due to competition with
    other insurance plans offered as prescribed above.
    *If additional money is needed to make Medicaid work, then employer provided insurance
    polices would be handled as follows: if an employer policy had 75% paid by employer and 25%
    to be paid by worker, as 75/25& split, then the 75% premium paid by employer would be
    reported as taxable income on the annual W-2 and the 25% paid by employee would be no longer
    payable with pre tax dollars.
    **Thus, we have tort reform, providers would no longer be required or have to purchase liability
    policies, thus reducing the cost of health care for all. Now there will be a pool of money for tort
    payments to malpractice to victims in each state. Each state would get a prorate share of the total
    amount equal to the percentage of policies taken in their state of the total number of insurance
    polices sold nationwide.. Each victim would receive a maximum amount determined by the
    mediation panel in each state. The maximum amount that the mediation board could award will
    be determined by each State Insurance Commissioner If the annual awards to victims are less
    than pool, then balance to go into medicaid for the following year. However, if more money than
    available is awarded to the victims, then their award would be converted to a percentage of the
    total awarded by the mediation board times the amount available, thus they would only get
    prorate share of the pool.
    Last at some future date to help Medicaid recipients, pay for education for Medicaid
    Doctors(MDs), Physician Assistants, and Nurses who would the have to work in Health Clinics
    in larger cities(over 1 Million) for 5 to 7 years to pay off their education loans.
    This is it in a nutshell in less than 2 pages. All of the implementation of it to be done by the
    Health Insurance Companies and monitored by the State Insurance Commissioners already in
    place to insure compliance with above stated Federal Law.
    Kim Newlin, Keeper of the LOG, The CREW of the SS Fellowship, US JR Chamber of
    Commerce 12455 SW 97th CT; Miami FL 3376, email: jcisenator@msn.com

  7. Obama care did not stay affordable and it did not insure all the people. It did hurt those that had depended on Insurance Coverage but people have resolved to get through the mess and hope for the States to get control over coverages and policies being offered. Aetna and AARP are being reviewed by their peers. Aetna is running and hiding after causing so much grief. They should be held accountable for their rhetoric.

  8. Prior to passage of the ACA, I had a colleague tell me that people who don’t have any insurance and get a catastrophic illness that could be medically corrected should just die – too bad, so sad, not my problem. The way I see it, the ACA has forced those types of people to actually come to the table and discuss a solution. As even noted in this article, “…until we fully repeal Obamacare, Republicans will have a difficult time agreeing on a combination of replacement packages…”. So, what has changed? I still believe they won’t come up with a solution.

    Take a look at every other industrialized nation. They all have public health care. The argument that “ours is better than there” because it is market driven fails to consider that the majority of the procedures that require a doctor are mundane enough that a GP who made Cs through medical school could in fact do those procedures. And once technology catches up (read about IBM and the Watson project), most medical professionals world-wide will have the capability to take on those special cases.

    First, We need to pool doctors similar to an army, pay a salary that is tied to a salary index (you pick the index and you pick the mark-up). Make it a decent wage with pay tied to GPA in medical school. Again, this would be a rather complicated and someone would need to figure all this out.

    Second, run it at the state level but collect the money to run it at the federal level. Make it a flat 1% of income that never changes. The pool of money is then divided up with the participating states.

    Third, give states an opt-out. They would then have 3 options: Roll your own, become filled with rich people that travel to Europe for any medical issues, or become a state where the population dies off.

    Forth, go back and adjust, tweak, and modify accordingly.

    Or how about this novel concept – we study other countries and work out what works best. You don’t need to boil the ocean in one fell blow; go after those 90% issues first.

    Catch my drift?

  9. Let’s be sure that the calorie count for restaurant menus is repealed along with the rest of this disaster. The only benefit of that mandate was for trial lawyers.

  10. The best way to repeal the law is in total. Medicaid by the states would then take over for those that can’t pay for any insurance…The federal government needs to reduce rates of welfare depenecy and limit government involvement in healthcare. No bailouts for insurance companies they will rebound when the law is repealed..

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  16. What about making Medicaid recipients work for their benefits, nothing hard, clean government officies, government housing, keep streets and roads clear, runners for government officies, drivers for government cars and employees, work in mail rooms sorting mail, grow vegetables, animals, flowers for all government officies, child care workers in government buildings and allow them to bring their own, clean bathrooms wherever they are that need cleaning, keep parks and natio al reserves green and beautiful, etc. Make them work and they will take pride in what they do and will move up quickly.

    • Most Medicaid beneficiaries are working full time and earning less than they need to feed their children because minimum wages are not sustainable wages. The Big question is; how much do you earn? or… are you living off a rich husband, so you can sneer at the poor?

  17. Health-care insurance is NOT health-care. We need state programs, not federal — That is and has been against our constitution. Any new law must correct the ridicules excessive cost of current healthcare. Health care should be priced like a utility and must be operated under the authority of the various states.

  18. There can be no caveats, no exceptions. It needs to be completely repealed. There needs to be tort reform, competition across state boundaries and no bail outs for the insurance companies. They, like the banking industry, have played a major role in the situation the country finds itself in with regard to healthcare. There needs to be legislation that caps pharmaceutical industry mark ups that far exceed manufacturing costs. Evidence of this is as plain as the bonuses the CEO’s of these companies make each and every year. There is a fine line between free enterprise and disparity among the classes of which now there are only two.

  19. I can afford food and don’t qualify for anything because I make too much money…hardly. Now I’m gonna fined when I haven’t needed a doctor in 25 years, its not right

    • Federal government should not be involved in health care, it should be left up to the states, voted on by their citizens. Obama Care was way too intrusive into people’s lives. How many people were able to even read the whole bill? How many changes were done to it since it was passed into law? Most people would have health insurance is they could afford it, but adding a penalty made no sense. The Un-Affordable Care Act must be repealed. The sooner the better.

  20. Repeal Obamacare in it’s entirety! This is what was promised to the American public during the campaign. Keep your word!

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  22. You have promised the American people who elected you that you will get rid of Obamacare so please do so ASP

  23. Get rid of Obamacare and don’t worry about replacing it. Somehow America made it for 220+ years before it was implemented. What is wrong with being accountable for yourself and paying your bills in $? Get the middlemen out of your healthcare.

  24. Obama Care has been a catastrophe, I have witness, small clinics, & forced many small businesses to shut down, while oppressing middle class, self employed people into slavery.

  25. Fully appeal Obamacare and that ridiculous tax, replace it with nothing. Government doesn’t belong in healthcare. Private sector healthcare was far more affordable and higher quality than what has been forced on us today.

  26. All insurances should be open to all states at all times so the playing field determines the pricing. Get the government out of the insurance business and definitely out of health insurance.

  27. Thank you so much for letting me leave some comments about Obamacare. I just hope the whole thing is repealed. We were able to make it before all these rules and regulations. This is taking away what little we have left and giving to those who don’t even try to work for a better life.

  28. If our reps were smart they can Repeal Obamacare real quick! The house controls the purse and they are the ones that can make law for taxes! They need to nullify the TAX ON OBAMACARE that JUDGE ROBERTS WHO SAID ITS A TAX NOT A FEE! Nullify the TAX and Obamacare becomes unconstitutional to the people, so they can get rid of it once and for all!

  29. Will someone explain how patients are protected if ACA is repealed now and not replaced for a year or more? We need to understand and be able to articulate this to convince those who are defending ACA and using the threat of having the rug pulled out as a reason not to repeal.

  30. Defund ACA, it has done nothing but increase health care.
    Also, defund the VA it has become too corrupt to provide timely, correct health care for disabled veterans where & when needed.

  31. Obamacare is nothing more than a way for these already too rich and powerful Insurance Companies to get even MORE greedy, rich and all too powerful.

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