The Republicans competing for the White House can agree on one thing: They all say they’ll get rid of Barack Obama’s health-care law. Mitt Romney says it will be his first official act. On Day One as President, he’ll issue waivers to all 50 states so they can disregard the law’s requirements, he said in the Oct. 11 GOP debate in New Hampshire. “I also say we have to repeal Obamacare, and I will do that on Day Two.”
No, he won’t. It’s a killer applause line for Republican audiences, but scrapping the Affordable Care Act would not be nearly as straightforward as Romney and his White House rivals make it sound.
Let’s say Romney wins the election. As President, he wouldn’t have the power to issue an executive order abolishing the health-care law. Instead, he hopes to exploit a provision in the existing statute allowing states to seek waivers if they set up health-care programs that provide coverage similar to the federal government’s. Romney says he’ll grant such waivers to every state right away.
It’s not that simple. Under the law, the state waivers don’t take effect until 2017. Romney can issue them early—they just won’t do anything. There is nothing in the statute that would let Romney issue blank-check waivers immediately, says Robert Laszewski, president of Health Policy & Strategy Associates, an insurance industry consulting firm. “You can’t make up the law as you go along.”
Lanhee Chen, Romney’s policy director, says the campaign is trying to figure out if there’s a way to move that date forward or to bypass the law’s requirements before 2017. Even if that’s not possible, Chen says the waivers still have value. “If states got the waivers at the start of the Romney Administration, they would be able to make appropriate plans,” he says. “We believe it’s important to pursue a state-based approach that focuses on health-care costs and gives states the power and the flexibility to do what’s best for their citizens.”
Congress could pass a bill moving up the date of the waivers, but that won’t happen before the election. Senators Scott Brown (R-Mass.) and Ron Wyden, an Oregon Democrat who has pushed for states to write their own reforms, are trying to shift the effective date of the waivers to 2014. So far the plan hasn’t gone anywhere—and won’t as long as Democrats control the Senate—which means Romney’s chances of delivering on his promise to let states opt out on Day One are essentially zero. Says Joseph Antos, a health policy analyst with the conservative American Enterprise Institute: “It’s going to be a Biblical Day One, which could last several years.”
On day two of his Presidency, Romney says, he will push to repeal the health-care law. Yet taking the statutes off the books would require an act of Congress, including 60 of the 100 votes in the Senate (the number needed to overcome a certain filibuster), a hurdle that would be virtually impossible to meet unless the GOP wins an overwhelming Senate upset in the election. At the moment, Democrats and their allies control the chamber 53-47.
So Romney says he will resort to using a fast-track rule in the Senate—the same parliamentary trick Democrats employed to pass part of the health-care law—that would allow Republicans to undo it piece by piece with a simple majority vote. In this way they could strip funding for the parts they don’t like. “You can effectively get rid of a good chunk of the law,” Chen says. Using such a parliamentary move, known as reconciliation, Congress could gut the law by eliminating the penalties for not having insurance and removing the $504 billion in subsidies the law offers to help people buy coverage.
Republicans would still need a majority in the Senate to make that happen—unless GOP leaders can persuade enough Democrats to vote with them. That would be a tough sell, given wide support for the law within the party. And there is no way for Republicans to get rid of the “chunks” of the law they don’t like without effectively destroying the parts Americans overwhelmingly say they do like, including requirements that insurers cover people with preexisting conditions and allow young people to stay on their parents’ plans until age 26. Both are popular even among those who say they take issue with other parts of the law. Remove the requirement to buy insurance and reduce the number of healthy people who are covered under the law, and these perks become prohibitively expensive.
In a September Bloomberg poll, almost half of voters—48 percent—said the law may need small modifications but should remain in place. A little more than a third said it should be repealed, and 12 percent said it should be left alone. Laszewski predicts that a Republican President would end up trying to tweak and change the health law to make it work better, rather than repealing it. “To fix the health-care law and create something the majority of the country can be happy with, you really need bipartisan agreement,” he says. “One side rammed it through, and if the other side tries to ram it back the other way, you create as many problems.”