Responding to Thursday’s Supreme Court decision upholding the constitutionality of the Affordable Care Act, Congressional Republicans have scheduled a vote in the House to repeal the law and Mitt Romney pledged to undo the measure if he’s elected president in November. But unless the GOP wins a super majority in the Senate — a scenario no one thinks is plausible — it can do little more than weaken Obamacare’s regulations and defund some of its provisions. Here is why:
1) Romney has no authority to issue waivers. Romney has promised to expand a provision of the Affordable Care Act that allows states to opt out of certain sections of the law to permit states to ignore it entirely. But the executive branch and the Department of Health and Human Services (HHS) likely don’t have the authority to grant such broad waivers. According to the law, HHS (together with the IRS) have waiver authority, but only if the states meet very specific requirements. Neither have blanket waiver authority, which would have to come from Congress. Sen. Ron Wyden (D-OR) — the author of the waiver provision — has challenged Romney’s claims, saying, “Anybody who tries to move outside the standards of the bill — which is the coverage and costs and the like — well I’ll certainly fight that. But I think lots of other people will too.”
2) Congress can’t repeal the full law through reconciliation. Without the necessary 60 votes in the Senate for full repeal, Republicans are pledging to use a budget reconciliation bill to undo the ACA. But this process would only apply to the budget-related elements of the law and would thus leave many portions — including the mandate — intact. As health care expert Robert Laszewski put it, “Romney could end up creating a chaotic environment driven by enormous uncertainty over just which parts of the new health care law would be implemented–for consumers, health care providers, and insurers.”
3) Republicans have nothing to replace it with. David Frum explains that since the expansion of coverage provisions go into effect in 2014, Romney would have just one year to both repeal and replace the law. Republicans haven’t even coalesced around a single plan — and many in the party believe that the federal government should leave health care alone and want to leave the entire reform process to the states. Thus, “if replacement does not happen in the first 100 days, it won’t happen at all — that is, it won’t happen as a single measure, but rather will take the form of dozens of small incremental changes adopted episodically over the next 20 years.”
4) Americans support Obamacare’s provisions. While Americans may not like “Obamacare” — and the political process of passing it — they do support its major provisions and are likely to resist any effort by Republicans to take away their benefits. A recent Reuters/Ipsos poll found that while 56 percent of Americans oppose the law as a whole, 61 percent of respondents favored allowing young adults to stay on their parents’ insurance plans until age 26, 72 percent wish to maintain the requirement that companies with more than 50 workers provide health insurance for their employees, and 82 percent of respondents favored banning insurance companies from denying coverage to people with pre-existing conditions. As more benefits roll out in 2014, it will be increasingly difficult for Republicans to argue for their repeal.
Budget experts suggest that the mandate would be vulnerable to a reconciliation package, since it brings in additional revenue and changes the government’s subsidy calculations.