How A Republican President Can Undermine The Affordable Care Act

Jonathan Bernstein considers the results of the latest Kaiser Family Foundation tracking poll and persuasively argues that public indifference and time may ultimately save the Affordable Care Act from repeal. It’s a good point, but one that may not hold true if a Republican becomes president in 2012.

As Inside Health Policy’s Sahil Kapur reports, while the executive branch doesn’t have the authority to outright repeal a law passed by Congress, a president can rely on a variety of tools and appointments to delay or weaken its implementation:

— GRANT WAIVERS: “The president could generously grant waivers to employers and other entities from having to abide by some of its regulations or taxes (such as the tax on so-called cadillac health plans). […] The health law also allows states to receive “innovation waivers” from the law, beginning in 2017, if they set up their own health care systems that seek to achieve ACA coverage goals in a different way. A president who’s uninterested in observing the reform law’s intended aims may conceivably grant waivers to states even if they do not set up adequate alternate systems.”

— DELAY IMPLEMENTATION: “[T]he executive branch is tasked with making sure states set up and operate insurance exchanges for individuals and small businesses to pool risk — state legislatures can do this on their own, and if they refuse, the federal government would take over. A president could “drag their heels” on issuance of further exchange regulations — or alter or reverse existing ones — and move slowly with procedures to identify people who are uninsured to bring them into the exchanges.”

— NOMINATE OPPONENTS OF REFORM: “The administration could slow-walk the implementation by not hiring regulators tasked with implementation of the law..And you could put somebody in charge of CMS who is hostile to [the health reform law]” and tries to roll back some of its provisions. Among the future appointments are 15 officials to sit on the reform law’s Independent Payment Advisory Board, a powerful panel charged with finding Medicare cost-savings in payments to providers, which is set to take effect in 2014.”

— STOP DEFENDING ACA IN COURT: The Justice Department could “switch sides” and argue that the individual mandate and perhaps the law in its entirety is unconstitutional. A Republican president could point to the Obama Justice Department’s reversal of stance on the Defense of Marriage Act as precedent for an administration arguing against the constitutionality of a federal statute.

All of this becomes a lot harder as reform is implemented and Americans begin to experience its benefits, and so a Republican wishing to undermine the law has to start peeling back its provisions following the election. But even that is not without its political obstacles, for as Bernstein points out, “are Republicans really going to restore the ability of insurance companies to deny coverage based on pre-existing conditions? Are they really going to bring back the donut hole (which isn’t closed yet, but is closing under ACA)? Are they really going to remove the other provisions that people have been living with for a while now?” Realistically, they probably won’t — particularly if they offer no viable alternative.