Romney’s Overreach: Would Illegally Allow States To Opt Out Of Health Law Through Executive Action

Likely Republican presidential candidate Mitt Romney (R-MA) wasted no time denouncing the Affordable Care Act today, the one year anniversary of its signing. The former Massachusetts governor — who signed and still supports a state-based plan that requires individuals to purchase coverage — wrote in the National Review this morning that if elected president, he would work to do-away with the entire law:

“If I were president, on Day One I would issue an executive order paving the way for Obamacare waivers to all 50 states. The executive order would direct the Secretary of Health and Human Services and all relevant federal officials to return the maximum possible authority to the states to innovate and design health-care solutions that work best for them.”

Romney’s proposed action is bold, but it’s also impractical. The executive branch and the Department of Health and Human Services (HHS) 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.

The law does offer states a great deal of flexibility, however, allowing governors to implement the health insurance exchanges themselves or letting “the federal government to do so.” “States may establish their own risk adjustment programs, preexisting condition high risk pools, and excessive premium increase review programs” and receive block grants to construct a “basic health program” that would serve a segment of the Medicaid-eligible population. States can also enter into interstate compacts for the sale of health insurance across state lines and by 2017, the federal government may grant waivers for key provisions and provide states with block grants to develop “their own innovative proposals for reforming health care” (so long as the state provides comprehensive and cost-effective coverage).