There is no course in law school entitled “the Law of Reconciliation”; there are no casebooks on the subject; and those of us seeking to predict the Senate parliamentarian’s imminent ruling on Graham-Cassidy have precious little data from which to work. The parliamentarian does not publish opinions that explain her reasoning, and most of what we know comes in drips and drabs from Senate Budget Committee staffers following the so-called “Byrd Baths” at which Byrd Rule compliance questions are hashed out.
That said, the Law of Reconciliation is in some ways similar to the subjects that are studied and taught at every law school. Questions often come down to whether the adjudicator “lumps” or “slices.” The legal standard in 2 U.S.C. § 644(b)(1)(D) — which states that a provision shall be stricken from a reconciliation bill “if it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision” — requires the adjudicator (here, the Senate parliamentarian) to decide just how narrowly or broadly to define the relevant “provision.” (For more on questions of lumping and slicing in other areas of law, see the work of my colleague Lee Fennell here, here, and — in video format — here, and look out for her forthcoming book. For more on Graham-Cassidy and the Byrd Rule, see my prior posts, these excellent writeups from the Washington Post’s Greg Sargentand Vox’s Dylan Scott, and this epic Twitter thread from the University of Michigan’s Nick Bagley.)
If we lump together all of Graham-Cassidy, then the bill does indeed produce changes in outlays and revenues that are more than merely incidental to the non-budgetary components: in 2027 alone, the bill would reduce federal health care spending by $299 billion, according to the Center on Budget and Policy Priorities. If we analyze the new 42 U.S.C. § 1397ee(i)(1)(B) as a standalone slice, then we reach the opposite conclusion. That new subparagraph, which Graham-Cassidy would add to the Social Security Act, allows states that receive federal block grants to waive several of the ACA’s most important provisions — including the requirement that insurers provide “essential health benefits” and the ban against discrimination on the basis of preexisting conditions. The new subparagraph on its own has no federal budgetary impact — states receive the same block grants regardless of whether they waive any ACA requirement — while the non-budgetary effect is to transform the regulation of the individual and small group health insurance markets in states that exercise their new waiver powers.
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