Beware the Medical Device Tax Fig Leaf

[Update: Jonathan Strong is reporting that Kevin McCarthy is already planning on using last night’s bill as a means of caving even further.  He is floating the idea of passing a clean CR with a provision eliminating the congressional exclusion – offering no relief for the American people.  Let the self-negotiations begin…]


Last week, the House stood unified behind a bill to fund the government and completely defund Obamacare.  Senate Democrats could have been caught with the ball on October 1 without the ability to pass a bill.  Sadly, Mitch McConnell and John Cornyn allowed Democrats to obtain superior leverage when they helped Harry Reid pass a clean CR without defund, and sent it back to the House.

Early this morning, the House voted to amend the Senate bill (H. J. Res. 59) with three changes:

1)      It changed the duration of the CR from November 15 to December 15, offering an extra month of government funding.

2)      It repeals the 2.3 cent medical device tax [Paulsen amendment].

3)      It delays implementation of Obamacare and the rest of the tax increases for one year without defunding the law [Blackburn amendment].  However, it does not delay everything.  All the mandates – guaranteed issue and the slacker mandate – will be left untouched.  These mandates are most responsible for the inexorable rise in insurance premiums.  They also create the most dependency.  There is no way we will ever repeal them if we let them slide now.

Headed into the new week, there are a few thoughts that come to mind with this new plan.


This is not a new bill; rather the House has amended the original bill primarily with two separate amendments – the delay provision and the repeal of the medical device tax.  This essentially gives Reid two options instead of one demand.  The House is ostensibly telling Reid that if the Senate doesn’t want delay they can go with a mere repeal of the medical device tax.  This will allow Reid to table the delay amendment (Blackburn amendment) with a simple 51 vote majority as opposed to requesting a new cloture vote to proceed with the bill.

Moreover, the Senate might actually agree to the medical device tax repeal.  Remember, 18 Democrats, including liberals like Al Franken, signed onto a delay of the tax last year.  This is just one tiny aspect of Obamacare, yet it serves as an outsized liability for Democrats.  It’s not hard to see how they would agree to send back the CR with such a repeal, all the while showing how they are willing to compromise.  This will make it tough for House members to stand firm against the new CR.

What we need to understand is that the debate changes after October 1.  Why are we negotiating with ourselves before the deadline, while Democrats are publicly sticking with their position of no compromise?  Let’s not conflate our negotiating tactic with what we may or may not accept as a final outcome.  If we head into October 1 agreeing to fund Obamacare, only delay part of Obamacare for one year, and offer Democrats an escape hatch with the medical device amendment, what will we get in the end?


If Republicans are really serious about not blinking in the fight against Obamacare, they should stick to the original bill, albeit with individual provisions to fund the military in case of a shutdown.  The House did pass such a bill as a standalone piece of legislation last night.  They should also add in the Vitter/DeSantis amendment, which eliminates the carveout for members of congress and their staffs.

This fear is already confirmed by Mitch McConnell’s heavy focus on the medical device tax in his press release:

“Today’s House vote reflects the clear will of the American people. Americans do not want a government shutdown and they do not want Obamacare. While some in the Senate Democrat leadership may think employers should get preferential treatment over individuals and families, and that repealing Obamacare’s medical device tax is ‘stupid,’ many other Democrats have made it clear they disagree. They should be allowed to vote to protect the thousands of good American jobs the medical device tax threatens to destroy and to give the same treatment to individuals and families that the White House has already given employers. The choice for Democrat leaders is clear: either shut down the government, or listen to the American people and act.”


The key point for conservatives to understand over the next few days is that there is a huge difference between what we should be messaging to Democrats and what we will accept as a final outcome after we actually engage in brinkmanship.  Conflating the two is a road to cave city.

Cross-posted from The Madison Project


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