Senator Marco Rubio of Florida, who everyone expects to run for president in 2016, has proposed a bill that would amend the Constitution of the United States to prevent the government from enacting Obamacare. After 37 House attempts to revoke the bill in part or in full, Rubio has thrown in his lot with a far, far, far— really far — less likely strategy. Rubio is thinking about running for president.
Rubio's office explains the plan at his website.
[Rubio] proposed an amendment to the U.S. Constitution providing that “Congress shall make no law that imposes a tax on a failure to purchase goods or services.” The provision would effectively reverse the ObamaCare individual mandate tax and prevent future attempts to tax individuals and businesses for failing to purchase goods and services Congress has deemed mandatory to have. ...
If passed by Congress and ratified by the states, the “Right to Refuse” amendment would reassert constitutionally limited government and exempt the more than 6 million individuals and businesses expected to be hit with thousands of dollars in mandate taxes set to begin in 2014.
Rubio has a partner in the effort, Rep. Steven Palazzo of Mississippi, who introduced a similar bill in the House.
If the House votes on Palazzo's bill, it would be the 38th time that the body has tried to repeal the Affordable Care Act since Republicans gained control in January 2011. We did a little data analysis, looking at how the first 36 of those votes went. Of all of the votes cast — some of which were in committees, not among the whole House — votes against Obamacare comprised 54.4 percent. Only a few votes saw a broad majority of support for curtailing the program. Those were usually tied to other funding proposals.
But 54.4 percent will not help the Rubio/Palazzo amendment. The rules for amending the Constitution are set out in its fifth Article. There are two ways to propose an amendment. The first is by introducing it in Congress. The second is at a convention resulting from an appeal by two-thirds of the states. If it's done in Congress, as this one would be, it requires two-thirds support in both the Senate and the House. If an amendment is successfully proposed, it requires state legislatures or states conventions in three-quarters of the states to approve it.
So what are Rubio/Palazzo's odds?
In the Senate: zero. The Senate is still controlled by Democrats. While they've been having some trouble overcoming Republican filibusters, they've had no trouble at all beating back Republican-led legislation. Particularly when it's an attempt to repeal the Democratic president's signature legislation. There have been 37 votes to repeal Obamacare in the House. There have been zero in the Senate.
In the House: zero. Again: 54.4 percent is not 66.6 percent — a two-thirds margin. Republicans have a strong majority in the House, but it's still well short of two-thirds. Republicans would need to pick up another 57 House seats to gain that advantage.
In fact, the last time the Republicans had a two-thirds majority in both chambers was the 43rd Congress. 1875.
In the states: a tiny, minute fraction above zero. Even if the amendment got out of Congress somehow, it would never be passed by three-quarters of the state legislatures as the Constitution mandates. Republicans have majorities in a number of states. They do not have majorities in 38 states — the required 75 percent. In 28 states they control both houses of the legislature. In 18, the Democrats do.
But approving a constitutional amendment is not a light endeavor, and legislators are generally predisposed to oppose them. The last time an amendment came before the states for approval, it was a measure that would have given Washington, D.C., full representation in the Congress. Only 16 states approved it. The one before that was the Equal Rights Amendment. Same result.
Given the odds outlined above, it's pretty safe to assume that this proposal won't go anywhere. In fact, it probably won't even come to a vote in the Senate, where it would need to be approved by a Democratically-led Rules Committee. So it is safe to expect that this idea will soon fade from public awareness and discussion.
Until sometime in early 2015, at which point it might come up in a debate.