Republicans won an impressive number of victories last night, including a larger and more conservative House majority and enough wins to give the GOP at least a 52-seat majority in the Senate. As Jeffrey Anderson and Robert Laszewski have noted, Republicans made ObamaCare a major issue in the election (the New York Times' denials notwithstanding). Senate Republicans will fall several seats short of the 60-vote super-majority needed to overcome a Democratic filibuster of an ObamaCare-repeal bill, though.
ObamaCare opponents are therefore debating whether and how Republicans could repeal some or all of the law via the Senate's "budget reconciliation" process, which allows certain legislation to pass the Senate with only 51 votes. Some opponents have proposed getting around these difficulties by getting rid of the filibuster entirely. I think there's a more prudent, targeted way Republicans could put ObamaCare repeal on the president's desk , give Democrats a taste of their own majoritarian medicine , and convince Senate Democrats of the virtues of restoring the filibuster on legislation and judicial nominations.
It goes like this. Senate Republicans would bring a reconciliation bill to the Senate floor. They would offer a one-line amendment: "The Patient Protection and Affordable Care Act of 2010 is hereby repealed." Democrats would raise a point of order against the amendment, most likely under the "Byrd rule." There is some disagreement about whether the parliamentarian would uphold that point of order, but rather than get into the details, I will assume she does. The amendment would be dead unless Republicans could muster 60 votes to overrule the parliamentarian (technically, the presiding officer, Joe Biden), which they cannot do.
However: all Senate rules are adopted and can be amended by a simple 51-vote majority. Outgoing Senate Majority Leader Harry Reid (D-NV) and his caucus reminded the nation of this fact when they "nuked" the filibuster for most judicial nominations.
Immediately after the parliamentarian rules the ObamaCare-repeal amendment out of order, therefore, Senate Republicans would give the required notice that they plan to change the Senate rules such that no budget-reconciliation point of order shall lie against any legislative provision repealing part of the Patient Protection and Affordable Care Act of 2010 . The next day, Senate Republicans would enact that rules change, and pass a bill repealing ObamaCare.
First, it would move the ball closer to the end zone by enabling Republicans to put an ObamaCare-repeal bill on the president's desk. Getting a repeal bill to his desk and forcing him to veto it would further undermine the legitimacy of a law enacted and implemented against the will of the people, and demonstrate that the opposition to the law has not faded. more at url