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 The next best option would be for Congress to take the reconciliation bill that repealed Obamacare, but was vetoed earlier last year (H.R. 3762), and pass it again with additional language repealing the Obamacare insurance mandates – a central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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Excessive Suspensions Raise Conservative Concerns

Avoiding Accountability

This week the House of Representatives is expected to pass a large number of bills (49) under the suspension of the rules, a procedural mechanism that allows Leadership to fly through the consideration of legislation, potentially even passing the bills by voice vote (which avoids accountability to their constituents). If a bill considered under suspension of the rules ends up receiving a recorded vote, it requires a 2/3 majority to pass, as opposed to the typical simple majority. Because of the higher threshold for passage, Republican House Leadership must secure Democrat votes for these bills. Legislation considered under suspension should not make any substantial policy changes or incur significant costs to the taxpayers. Unfortunately, many of the bills on the suspension calendar regularly violate these principles, and this week is no exception; in fact, it is worse than most.

Through A Terrible Process

The process of underlying the bills being considered this week falls short of at least four main reasons:

  1. Considering almost 50 bills under the suspension of the rules avoids accountability and is an irresponsible way to govern. Most Members of Congress and their staff do not have time read each one of these bills, and even if they did, if the bills pass by a voice vote (which is often the case), constituents have no record of how their Representative voted on most of these bills.
  2. The Republican controlled Congress should be focused on more pressing matters, such as fighting for a conservative spending bill that avoids a lame duck session of Congress. Spending two days passing legislation that is meaningless at best, and liberal at worst, with Democrat support is an example of misplaced priorities.
  3. Many of the bills were scheduled for a vote before they had a Congressional Budget Office score available. While some of the scores may be made available later, Members of Congress and their staff will not have adequate time to fully grasp how much the legislation would cost and whether or not it would add to the debt or deficit. Furthermore, this violates the Majority Leader’s Floor Protocols.
  4. On the schedule are a number of Democrat bills from members who actively participated in the “sit in” that violated House Rules. This means that Democrats are being rewarded who broke House rules regarding decorum and behavior of Members of Congress.

Results In Bad Policy

Of the 49 bills on suspension, conservatives should be particularly opposed to two:

  1. H.R. 670, the Special Needs Trust Fairness Act, offered by Rep. Glenn Thompson (R-PA). The bill expands Medicaid, uses budgetary gimmicks, and provides $24 million for a slush fund at HHS. Along with creating a new $11 million Medicaid program to help women in post-pregnancy to quit smoking (even though it only has an expected 10% success rate), it appropriates an additional $24 million over two years (2020-2021) into the Medicaid Improvement Fund (a slush fund) and uses a budget gimmick (temporarily ending Medicaid payments for hair growth drugs like Rogaine) to offset the expansion of special needs trusts to non-elderly individuals with disabilities. Medicaid needs reform, not a piecemeal expansion of eligibility or benefits. The bill’s approach only undermines an already vulnerable program.
  2. H.R. 5859, the Community Counterterrorism Preparedness Act, offered by Rep. Michael McCaul (R-TX). This bill creates another new (and duplicative) federal grant program for counterterrorism training in major metropolitan areas and also authorizes $195 million for its implementation. This is despite the fact that earlier this year the Department of Homeland Security announced Fiscal Year (FY) 2016 Notices of Funding Opportunity for ten DHS preparedness grant programs totaling more than $1.6 billion. Furthermore, this bill brings back echoes of the failed Countering Violent Extremism policy promoted by the Obama Administration, DHS, and the Homeland Security Committee. Like other bad CVE bills Heritage Action has opposed, H.R. 5859 contains no effective prohibition against funding groups like CAIR, and other unindicted co-conspirators from the Holy Land Trial, or other potential Muslim Brotherhood front groups, or from receiving the grants and participating in the “community outreach.”

A Republican Congress should not be legislating through an expedited process that obscures transparency and grows government with little to no accountability. House Republicans should ensure that all 49 of these bills receive a recorded vote, evaluate each bill on their merits, and especially ensure that these two bills receive recorded votes and then vote against them.

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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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Fact Sheet: How to Protect Religious Freedom

Background: On June 26th, 2015, the Supreme Court ruled in Obergefell v. Hodges that laws defining marriage as the union between a husband and wife were unconstitutional and imposed a new definition of marriage on all fifty states.

In anticipation of the ruling, Sen. Mike Lee (R-UT) and Rep. Raul Labrador (R-ID) introduced the First Amendment Defense Act (FADA) on June 17th, 2015, to prevent the federal government from denying tax exemptions, grants, contracts, licenses, or certifications to individuals and organizations based on their belief that marriage is a union between a man and a woman. Since its introduction last June, the bill has picked up major support in the Senate and the House. The Senate bill now has 37 cosponsors along with nine members of the judiciary committee. Cosponsors on the House bill currently include 166 members making up the majority of House Republicans.

Imminent Risk to Religious Liberty.

During argument before the Supreme Court in Obergefell v. Hodges, Solicitor General Donald Verrilli was asked whether the administration could remove tax-exempt status for religious schools that believe marriage is the union of a husband and wife. Verrilli replied saying, “it’s certainly going to be an issue.”

Similar challenges to religious liberty have already surfaced across multiple levels of government. State legislatures, such as California in 2013, have made attempts to remove tax-exempt status from groups such as the Boy Scouts. In 2014, President Obama issued an executive order barring federal contractors from “discriminating” on the basis of sexual orientation, disadvantaging businesses and organizations with policies supporting traditional marriage. Faith-based adoption agencies in Massachusetts, Illinois, and Washington, D.C., have lost their licenses and contracts because they believe children deserve to be placed in homes with a married mom and dad. The liberal American Bar Association just announced that is investigating BYU Law School’s policies against same-sex marriage, thereby putting its accreditation and access to federal funds at risk.

In the wake of the Supreme Court’s decision, these challenges have only intensified. FADA’s protections are a positive step in heading off these and future threats to religious liberty.

Indiana Case Study.

In anticipating and in response to the Supreme Court’s marriage ruling, numerous states rushed to enact various Religious Freedom Restoration bills. In Indiana, Senate Bill 101 passed with overwhelming support, but immediately faced a national backlash from LGBT interest groups along with some members of the business community. Unfortunately, rather than defend the religious rights of the people of Indiana, Indiana legislators pushed through a statutory “fix” undermining Indiana’s new law. But even in Indiana, which became ground zero in the fight for religious liberty, lawmakers have regained their footing on the issue. Due to the efforts and influence of strong conservatives, further efforts to undermine religious liberty through sexual orientation and gender identity “bathroom bills” were defeated in the Indiana Senate this year. Congress should not be afraid of “another Indiana” because Indiana is now successfully defending religious liberty.

Congressional Responsibility in Preserving Religious Freedom.

At all levels, government has an obligation to ensure that Americans retain the right to speak and act in accordance with their religious beliefs. On the federal level, the body tasked with preserving those rights is Congress. Congress has an opportunity to take the lead in declaring that the redefinition of marriage cannot be allowed to erode religious liberty, and that religious liberty and the rights of conscience do not infringe upon anyone’s sexual freedoms.

As Heritage Scholar Ryan Anderson notes, the fight for conservatives after the Supreme Court’s decision is to protect the freedom of speech, association, and religion for those who continue to affirm that marriage is the union of a man and a woman. The First Amendment Defense Act it is a positive step in the right direction.

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