Daniel Hemel on Graham-Cassidy and the Byrd Rule

Graham-Cassidy Is on a Collision Course With the Byrd Rule

The Graham-Cassidy bill is gaining momentum, but a significant procedural obstacle still lies in its path. Before the bill goes to a floor vote, Senate Parliamentarian Elizabeth MacDonough will rule on whether parts of the legislation violate the Byrd Rule, which prevents bills passed through the reconciliation process from containing any provision that “produces changes in outlays or revenues that are merely incidental to the non-budgetary components of the provision.” The parliamentarian’s verdict is not law — and, in theory, Senate Republicans could ignore it — but so far the Senate Republicans have abided by the parliamentarian’s rulings, and it would be a surprise if they did otherwise here.

Aside from the text of the Byrd Rule, we have relatively little information about how the parliamentarian interprets the “merely incidental” prohibition. But we do know what provisions in the Better Care Reconciliation Act died in the “Byrd bath.” In July, the parliamentarian struck, among other elements of the Republican repeal-and-replace plan...

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