Full Repeal Must Include the Regulatory Architecture of Obamacare

Background: On March 6th, House Republican Leadership released a long anticipated bill that partially repeals and replaces Obamacare named the American Health Care Act (H.R. 1628). Speaker Paul Ryan was forced to delay a vote on the AHCA before finally pulling it from the House floor due to lack of support among House Republicans – conservatives and moderates included. While the bill contains many provisions that should concern conservatives, the main problem with the repeal portion of the bill is the failure to repeal most of the insurance regulations that contribute to the rising cost of health care. The Republican proposal not only maintains the overall regulatory framework of Obamacare, but also subsidizes that regulatory framework through new refundable tax credits aimed to help individuals buy their own health care plans – plans that will remain highly regulated and overly expensive.

Obamacare Regulations Defined: The heart and soul of Obamacare contains numerous insurance mandates and regulations that restrict consumer choice and drive up the cost of health care premiums by as much as 68 percent. The four most problematic regulations include guaranteed issue, community rating, essential health benefits, and actuarial value.

1.) Guaranteed Issue: Prohibits insurance companies from denying customers regardless of their previous insurance history, which incentivizes potential customers to delay purchasing insurance until they need it. The guaranteed issue requirement necessitated the individual mandate in Obamacare, which has been replaced in the AHCA by the 30 percent surcharge in the individual market paid directly to insurance companies. Congress should address this issue by simply extending existing protections in the employer market to the individual market once Obamacare’s regulations have been repealed to solve the “waiting until you are sick to get coverage” issue.

2.) Community Rating: Prevents insurance companies from setting prices based on the age, health status and/or gender of the customer. The AHCA only moves the age rating ratio that Obamacare uses from 3:1 to 5:1, but does not address health status or gender.

3.) Essential Health Benefits: Outlaws inexpensive and customized health insurance plans by requiring insurance companies to cover comprehensive benefits, even unnecessary ones including maternity care for single males, specific rehabilitative services, preventive services, and others.

4.) Actuarial Value: Abolishes cheaper, catastrophic plans by requiring insurance companies to cover a certain percentage of total health care costs. The AHCA does get rid of this regulation, which is one of the only positive reforms in the bill.

Moderate Republicans have hidden behind the flimsy argument that Congress cannot repeal Obamacare’s insurance mandates and regulations through budget reconciliation because it does not have a clear budgetary impact. In reality, Obamacare’s regulatory architecture imposes significant costs on taxpayers and is inseparable from the rest of the law. These regulations are one of the main reasons why health care costs are rising and federal spending is increasing under this law. Congress has the legislative tool it needs to repeal Obamacare’s regulatory architecture through budget reconciliation and should maximize its use. Congress can address individuals priced out of the market with pre-existing conditions through alternative solutions such as state based high risk pools.

Full Obamacare Repeal: Republicans cannot maintain Obamacare’s regulatory structure and claim to have repealed the law. Without repealing these insurance regulations – the regulatory architecture of Obamacare – Republicans will fail to keep their seven year promise to fully repeal Obamacare, and health care costs will continue to rise. According to Heritage Action CEO Michael A. Needham:

“Many Americans seeking health insurance on the individual market will notice no significant difference between the Affordable Care Act (i.e., Obamacare) and the American Health Care Act. That is bad politics and, more importantly, bad policy. Rather than accept the flawed premises of Obamacare, congressional Republicans should fully repeal the failed law and begin a genuine effort to deliver on longstanding campaign promises that create a free market health care system that empowers patients and doctors.”

Obamacare Timeline Slipping: The ongoing delay over how much of Obamacare to repeal and what to replace it with has caused the timeline to slip. Further delays are pushing repeal past the congressional Easter recess and dangerously close to when the federal government runs out of funding on April 28th and when insurance companies must submit proposed premiums for 2018 Obamacare plans on May 3rd. Congress could quickly repeal first and then debate and pass free-market health care reform that lowers cost, increases choice, and restores the doctor-patient relationship.

Conclusion: Republicans promised to fully repeal Obamacare, including Title I regulations, campaigned and won on full repeal, and voted more than 60 times to repeal parts or all of the disastrous healthcare law. Congress can repeal Obamacare through modifications to the AHCA, through a new, more comprehensive rewrite, or by simply re-passing the 2015 repeal bill (H.R. 3762) with additional language repealing the insurance regulations. The 2015 bill was supported by nearly every single Republican, but ultimately vetoed by former President Barrack Obama in 2016.

Now that voters gave Republicans a unified government including the White House, there are no more excuses. Failure is not an option. Conservatives need to continue pushing for full repeal, including all of the Obamacare insurance regulations, as soon as possible by actively participating in town halls, writing letters to the editor, and contacting their member of Congress.

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How to Repeal and Replace Obamacare under a Trump Administration

Background: Republicans promised the American people a full repeal of Obamacare dating back to 2010, when the health care law was first passed. In fact, since Republicans took control of the House in 2010, 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 this unaffordable, unworkable, and unfair law.

In 2015, Congress used a filibuster-proof process known as budget reconciliation to pass an Obamacare repeal bill (H.R. 3762), that was ultimately vetoed by former President Barrack Obama in 2016. 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.

Obamacare “Two Budget” Repeal Strategy: Just as they did in 2015, Republicans should use budget reconciliation to repeal Obamacare. Budget reconciliation allows Congress to pass legislation with a simple majority in order to avoid a filibuster in the Senate. Ironically, Democrats used this same method to help pass parts of Obamacare in the first place. Due to conservative opposition, Congress failed to pass a budget for fiscal year 2017, creating an opportunity to pass two budgets, each with reconciliation possibilities, this year.

In the first budget, Congress should include the full repeal of Obamacare. This budget should pass the House and Senate easily and be placed on President Trump’s desk for his signature soon after he takes office. The next best option would be for Congress to take the reconciliation bill that repealed Obamacare, but was vetoed earlier last year (H.R. 3762), and pass it again with additional language repealing the Obamacare insurance mandates – a central reason health insurance premiums continue to rise. The third and minimal option would be for Congress to simply re-pass H.R. 3762, which does not include the repeal of insurance mandates and other important provisions. Repealing Obamacare does not mean that individuals on the federal and state Obamacare exchanges would immediately lose their health care plans. Instead they would have an ample period of time to transition back to an insurance plan on the individual market without losing coverage.

Congress should then pass the normal budget for fiscal year 2018 that lowers spending levels and includes other conservative priorities. This will give Congress time to work on an Obamacare replacement plan that restores consumer choice, strengthens the doctor-patient relationship and lowers costs. Replacement reforms Congress should consider include improving and expanding health savings accounts, removing government barriers that stop patients from participating in direct primary care arrangements, allowing patients to buy health insurance across state lines, and equalizing the tax treatment of health insurance for individuals and businesses, among others.

Obamacare Repeal Timeline Slipping: This January, Congress took an import first step to repeal Obamacare by passing the FY 2017 “shell” budget resolution (S. CON. RES. 3). Heritage Action key voted “Yes” on the resolution since it’s “the only way to expedite the repeal of Obamacare.” This resolution begins the process of budget reconciliation by setting up instructions for the House Ways & Means Committee, the House Energy & Commerce Committee, the Senate Finance Committee, and the Senate Health & Education & Labor & Pensions Committee to write a budget reconciliation bill that repeals Obamacare. Once the bills pass out of their respective committees they move to the Budget Committee. The Budget Committee then passes one unified repeal bill which the House and the Senate can then pass with a simple majority and President-elect Trump can sign into law.

Unfortunately, despite passing the budget resolution in early January, Congress has still not written the budget reconciliation bill repealing Obamacare. Seven in ten Americans believe the longer Congress waits, the less likely Obamacare repeal becomes a reality. Congress cannot allow the timeline to continue to slip. Not only does it delay work on other legislative priorities, but millions of Americans are suffering from the harmful side effects of Obamacare as premiums and deductibles continue to rise and health insurance choice falls.

Conclusion: Some repeal proponents assume Republicans must have a replacement plan at the same time as repeal, but this ensures momentum for full repeal stalls. Republicans may have a difficult time agreeing on any one single replacement plan, and Democrats will refuse to negotiate, instead doing everything in their power to sink the replacement plan and therefore Obamacare repeal.

Congress will use any excuse to avoid doing the right thing. As former Senator Jim DeMint and current President of the Heritage Foundation strongly wrote: “When I was in the Senate, they would use every excuse to avoid fighting for conservative priorities. “Wait until we get the House.” Done. “Wait until we get the Senate.” Done. “Wait until we get the White House.” Done and done. There are simply no alternatives left but to repeal Obamacare and win the fight (a shocking prospect for some!)”

Members who truly want to repeal Obamacare must insist on repeal immediately. This proposed two-step process gives Republicans the best chance to repeal Obamacare and honor their commitment to the American people who put them in power while providing plenty of time to enact a replacement plan. Conservatives must continue to urge their member of Congress write and pass the budget reconciliation bill to repeal Obamacare as soon as possible.

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Forcing American Daughters into the Selective Service

Background: In January 2013, then-Secretary of Defense Leon Panetta directed the military services to review policies with the goal of integrating women into all combat roles by January 2016. On December 3, 2015, Secretary of Defense Ashton Carter confirmed the decision without exception, and directed that all gender-based requirements for military service be removed by January 3, 2016. This order came despite military evaluations that raised concerns on this issue.

The decision to allow women to serve in all combat units has sparked a debate on whether women should be required to register for the Selective Service, making them eligible for conscription if Congress reinstates the draft for future military needs.

Forcing women to register for the draft a premature conclusion: Leading up to the decision to open all combat positions to women, evaluations raised questions about the effectiveness of mixed gender units in ground combat tasks. According to an extensive 9-month Marine Corps’ Gender Integration Task Force study, which evaluated mixed gender units in 134 combat training activities, all-male units outperformed mixed units in 69 percent of the tasks while mixed units outperformed male units in just 2 tasks.

Additional evidence from the Marine Corps evaluation showed that women had an injury rate twice that of men when performing combat-related tasks. The increased risk of injury could threaten their personal safety as well as the safety of their fellow soldiers in combat situations.

Supporting equality does not require forcing women to register for the draft: Conservatives believe women and men have equal natural rights, and equality means that law should treat things that are the same in the same ways. But when it comes to combat-related tasks, there are differences between men and women that are relevant to accomplishing the military mission.

According to former Marine Corps servicewoman and current Sentinel Jude Eden, “Combat is not an equal opportunity for women because they don’t have an equal opportunity to survive.” If women’s increased risk of injury makes them more vulnerable when engaging the enemy, why would Congress ever want to require women to be registered for the Selective Service, and ultimately the draft?

Women can and do contribute significantly to the overall mission of the military. But military personnel policy, particularly when it comes to combat, should be determined based on military objectives and preparedness, not President Obama’s social agenda.

Conclusion: Congress should prohibit the drafting of our daughters into military services through the Selective Service. The Conference Committee is set to resolve the differences between the Senate’s National Defense Authorization Act (NDAA) for fiscal year 2017 (S. 2943), which currently includes a provision forcing women ages 18-26 to sign up for the Selective Service, and the House’s NDAA (H.R. 4909), which does not. Congress should strip out the provision forcing women into the draft by adopting the House’s bill in Conference Committee.

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President Obama’s Unilateral Transgender Policy for School Bathrooms

Background: On Friday May 13, 2016, President Obama’s Department of Justice (DOJ) and Department of Education (ED) issued a letter of joint guidance on transgender bathroom access for America’s school system. Using Title IX of the Education Amendments of 1972, the Obama administration is reinterpreting discrimination against “sex” to include “gender identity.” The new guideline directs any educational institution which receives federal funds to allow transgender students to use bathrooms and locker rooms that correspond to their gender identity, rather than their birth certificate.

Unlawfully Rewriting Law: Biological sex and gender identity mean two very different things. When Congress passed the Education Amendments back in 1972, the purpose was to protect women and girls from discrimination based on sex and ensure equal opportunity in education programs. The Obama administration has no right to unlawfully rewrite federal law in order to advance its own liberal social agenda in the wake of transgender bathroom disputes, must notably in North Carolina.

Violating Federalism: All across the country, state and local governments are working with parents, teachers, and school districts to determine how best to accommodate the privacy and safety of transgender students along with those students who feel uncomfortable going to the bathroom and changing with the opposite sex. For example, many schools have created new single-occupancy bathrooms and changing facilities for transgender students. The Obama administration’s decision to unilaterally impose a one-size-fits all policy for every school in the country undermines the ability of state and local governments to enact and enforce policy that’s best for their communities.

Bad Policy: Sex-specific bathrooms and locker rooms were created for a legitimate reason. Allowing boys who identify as girls to have unfettered access to girls’ bathrooms, locker rooms, shower facilities, and dorm rooms violates the privacy and safety of women. Sex-specific bathrooms serve a valid purpose of protecting the privacy and safety of girls and women, especially those who have been sexually abused.

Frequently Asked Questions:

How will President Obama enforce the guidance?
The joint guidance issued by the DOJ and ED does not have the force of law, though activist courts may interpret it as such, leaving schools under immense pressure to comply. President Obama is attempting to bully state governments into compliance by threatening to strip schools of federal funding. Until the guidelines are upheld by the courts, schools should refuse to comply with President Obama’s overreach.

What schools are affected by the guidance?
If the courts uphold the President’s guidelines, all schools, including colleges, universities, trade schools – public, private, and charter – that receive federal funding will have to comply or lose their federal funds. This could have significant negative repercussions on the school choice movement as well.

How does the federal government define “gender identity?”
According to the Obama administration’s guidelines, “Gender identity refers to an
individual’s internal sense of gender.” Furthermore, a “school may not require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate or other identification document before treating them consistent with their gender identity.” Essentially, a student is transgender if and when they say they are.

Can schools provide separate bathrooms and locker rooms for transgender students?
No. The Obama administration explicitly rejects compromises including single-occupancy facilities. According to the guidelines, “A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so.”

Do these guidelines apply to housing policy as well?
Yes. Separate accommodations for transgender students are not permitted. This applies to campus housing and hotels for off-campus trips as well, “A school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations.”

What can be done to reverse the DOJ/ED guidance on transgender bathrooms?
Congress can actively push back against President Obama’s overreach by passing legislation clarifying that for the purpose of all federal law, “sex” does not mean “gender identity” or passing legislation that “sex” does not mean “gender identity” for the purpose of Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1968. Congress can also defund the guidance by attaching a defund rider to an appropriations bill(s) that stops the DOJ/ED from using federal funds to enforce the guidance.

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Defund HUD’s Affirmatively Furthering Fair Housing Rule

Background: On July 8, 2015, the Department of Housing and Urban Development (HUD) finalized language for a new housing regulation named the Affirmatively Furthering Fair Housing Rule (AFFH). This new 377 page rule, first implemented in mid-August of 2015, empowers the Federal government to audit the demographic and socioeconomic status of local communities in order to force state and local governments to enhance diversity among its community makeup.

All local jurisdictions that receive HUD funding, particularly through the Community Development Block Grant program, are subject to this rule and must identify factors and communities assets that contribute to the racial disparities in their communities compared to those at the local and regional level around them. Once this evaluation is complete, localities must develop a plan on how to fix the racial disparities and submit it to HUD for approval.

Problem: AFFH effectively turns HUD into a National Zoning Authority for every locality across the country. Suburban neighbors will have to compare themselves with neighboring cities and essentially rewrite their zoning laws and pay for affordable housing projects and other community development projects to encourage housing diversity and affordability in their communities.

According to department officials, this rule is needed because “increasing a neighborhood’s appeal to families with different income and ethnic profiles can encourage a more diversified population and reduce isolation.” While this may be a goal worth pursuing, local authorities, not unaccountable federal bureaucrats should be making these decisions.

As Senator Mike Lee (R-UT) so plainly puts it, “In other words, this new regulation is designed to give unelected, anonymous bureaucrats in Washington the power to pick and choose who your new next-door neighbor will be. If they don’t believe your neighborhood is “diverse” enough, they will seize control of local zoning decisions—choosing what should be built, where, and who should pay for it—in order to make your neighborhood look more like they want it to.”

Solution: Congress must use its Constitutional power of the purse to defund any implementation of the AFFH rule. The House of Representatives has already passed Rep. Paul Gosar’s (AZ) amendment to defund the AFFH rule and attached it to the Transportation, Housing and Urban Development and Related Agencies Appropriations Act for Fiscal Year 2016. The Senate must now take up and pass Sen. Lee’s AFFH defunding amendment to make sure this reaches the President’s desk and is signed into law. Local communities, not bureaucrats in Washington, D.C., should determine the social and economic makeup of their own neighborhoods.

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