• Can A Bipartisan Majority Repeal The Medical Device Tax?
  • July 29, 2015
  • Law Firm: McDonald Hopkins LLC - Cleveland Office
  • Last month, the House voted 280 to 140 to repeal the medical device tax. Two years ago, the Senate passed a nonbinding resolution - by a vote of 70 to 20 - calling for repeal of the tax. Despite these large bipartisan and bicameral majorities, the question remains whether or not the medical device tax will finally be repealed.

    One big stumbling block remaining to repeal? The Obama White House, which has threatened to veto such a bill.

    Majority Leader Mitch McConnell (R-KY) cleared a path for the House bill last month, using a legislative maneuver that would allow it to bypass the committee and head directly to the Senate floor. So far, however, the bill has not yet been put on the Senate schedule.

    A two-thirds vote in each chamber is needed to override a presidential veto. But supporters admit this is unlikely.

    Republicans are united in their support for the repeal of the tax, even as they continue to push for repeal of the entirety of the Affordable Care Act. Democrats, on the other hand, range from hesitant to very concerned about the repeal, except for a handful of supporters.

    Minority Leader Harry Reid (D-NV) was among the fewer than two dozen senators who voted against the repeal in the 2013 budget amendment and has not indicated a change in position.

    One of Democrats' key concerns is that they haven't yet seen any offsets to the tax.

    "It's a big hole in the budget if you repeal the entire tax," Minority Whip Dick Durbin said. "I've said I'm in favor of changing it to help those companies that are struggling, but I want to do it in a budgetary way that doesn't jeopardize the deficit or the Affordable Care Act."

    It's unclear whether the repeal will be put forth on its own or as part of a larger package. Republicans aren't lacking for options—they could put it in an Obamacare repeal that passed through reconciliation, should they choose to use the tool that way. But if they do that, they face another veto—one that definitely could not be overcome. The tax repeal could also be included as part of a spending bill.

    Despite all of the barriers to it becoming law, the repeal of the medical-device tax might be Congress's best chance of taking any form of bipartisan action on the Affordable Care Act, whether it be framed as strengthening the law or getting rid of it one piece at a time.