Mitt Romney’s web site makes a bold promise: “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 50 states. He will then work with Congress to repeal the full legislation as quickly as possible.”
Many of Romney’s supporters assume that this is what will happen if he wins. But in truth, even if Republicans take both the White House and the Senate, Romney wouldn’t have the power to “repeal the full legislation.” Nor could a new president grant waivers that would let states ignore the Affordable Care Act (ACA). We live in a nation ruled by law, not magic wands.
There are no “Obamacare waivers” that could be issued by executive order. Section 1332 of the ACA permits “waivers for state innovation,” but these waivers, which only affect certain provisions of the law and can only be granted if specific substantive and procedural requirements are met, cannot be granted prior to January 1, 2017. Even in 2017, a state seeking a waiver would have to show that it had a plan to provide coverage that is at least as comprehensive and affordable and that covers at least as many people as the ACA (without increasing the deficit), not exactly what Governor Romney has in mind.
Legislation has been introduced in Congress that would accelerate these waivers to 2014, indeed President Obama announced support for such legislation, but it has gone nowhere. There are other provisions in the ACA permitting waivers or adjustments from specific requirements, such as waivers on the ban on annual dollar limits prior to 2014, but the time for granting these has already expired, and in any event they would have only a trivial effect on the law.
What about repeal? As every American remembers from middle-school civics, the president cannot unilaterally repeal a law. Under Article I of the Constitution, a bill must be passed by both the House and Senate and signed by the president to become law. This happened with the ACA, and the ACA remains the law of the land until it is repealed through this process. Under the Senate rules, a bill must pass the Senate by a three-fifths majority if it is filibustered, and an ACA repeal certainly would be. At this point in time, no one is predicting that the Republicans will pick up a 60 vote majority in the Senate, so repeal as such seems off the table.
This is also true for repeal and replace. Etc.
Lots more at the link for anybody who needs more evidence. There are likely a number of staff and support personnel who are more conversant with the minutiae of the law, but Dr. Jost followed the legislation from the outset and probably knows more about ACA than anybody in Congress. Whatever he says is solid as a rock.
He includes a concise summary of the Byrd Rule and how it acts as a constraint on Reconciliation. It should be remembered that ACA is a product of Reconciliation which opponents like to depict as some kind of parliamentary sleight of hand.
Budget reconciliation bills in the Senate are subject to the “Byrd rule,” which is in fact a federal statute. The Byrd rule allows any senator to raise a point of order objecting to any “extraneous provisions” in a reconciliation bill. If the Senate parliamentarian upholds the point of order, a three-fifths majority of the Senate is necessary for the provision to remain in the legislation.
As a reminder, the famous COBRA law (mandating employer-provided group insurance availability for six months following anyone's discharge from a job) is an acronym for Consolidated Omnibus Budget Reconciliation Act.
Of all the lies and promises that have come from the mouth of Mitt Romney, his promise to repeal and replace Obamacare is perhaps the most egregious and he knows it. (If he doesn't know it, we're in even worse shape than I thought.)