Romney says he’ll undo Obama healthcare reform on Day 1. Can he?

Mitt Romney says he would repeal the Affordable Care Act on Day One if elected. A pair of lawyers assess whether that's possible.
(Emmanuel Dunand, AFP/Getty Images)

Mitt Romney has pledged to do away with President Obama’s healthcare reform law if he wins next week’s election. But would he — or any other president — have the power to do so?

Not exactly, according to two Georgetown University professors writing this week in the online version of the Journal of the American Medical Assn. But there are some things President Romney would be able to do if he won, and more if he were joined in Washington by a Republican-controlled Congress.

Romney’s campaign website promises that the former governor of Massachusetts would make the undoing of the Patient Protection and Affordable Care Act — often referred to as “Obamacare” — a priority:


“On his first day in office, Mitt Romney will issue an executive order that paves the way for the federal government to issue Obamacare waivers to all fifty states.”

But any attempt by Romney to unilaterally repeal the entire law would run afoul of the U.S. Constitution, which requires that the president “take care that the laws be faithfully executed,” according to the authors, both lawyers who teach at Georgetown.

The ACA does allow the president to issue waivers to the states, but only so that they can implement alternatives to the law that are better, not worse, write John D. Kraemer and Lawrence O. Gostin. In any case, those waivers won’t be available to states until 2017.

The Department of Health and Human Services also has the power to give states waivers to change the way they run Medicaid – but these “are intended to enhance, not undermine, the ACA’s goals of increased access and lower cost,” Kraemer and Gostin write.

Romney might have some wiggle room with some subsidies intended to help low-income people buy health insurance. The law gave states the power to create health insurance exchanges, and the federal government can step in if they don’t. For some reason — an oversight, apparently — the ACA offers subsidies for low-income customers if they buy a health insurance plan from a state-run exchange but not from one run by the federal government. If Romney refused to extend the subsidies to people shopping on the federal exchange, the courts would probably allow it, according to the lawyers.

Another thing Romney could probably do is effectively eliminate one of the most-criticized pieces of Obamacare: the individual mandate. Since the penalty for failing to buy an insurance policy is actually a tax, a Romney administration could direct the Internal Revenue Service not to collect that tax, sending a signal “that individuals would not be penalized for failing to purchase qualifying insurance,” they wrote. (This would be analogous to Obama’s decision to lay off deportations of nonviolent undocumented immigrants.)


For Romney to follow through with his plan to repeal and replace the ACA, he’d need the cooperation of Congress, and that’s unlikely because it would require that the Republicans hold on to the House and also gain a filibuster-proof 60-seat majority in the Senate. If that were to happen, though, the GOP would have to be careful because if it keeps only some provisions and removes others, the healthcare mess could get a whole lot messier, Kraemer and Gostin write. “For example, by keeping preexisting condition coverage while eliminating the mandate, the cost of insurance might soar,” they say.

All of this should serve as a reminder to voters that access to healthcare continues to be an important issue in the campaign, the lawyers conclude:

“Repeal of the ACA or blanket state waivers are unlikely given the political and constitutional landscape. Still, if a President Romney or a Republican-controlled Congress remained determined to do so, there would be ample opportunity to slow or block full ACA implementation.”

You can read their Viewpoint in JAMA here.

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