Could Romney Really Repeal Healthcare Reform on Day One?

A centerpiece of Mitt Romney's platform is his vow to repeal President Obama's Patient Protection and Affordable Care Act on his first day in office, if elected. Mr. Romney has remained steadfast with this promise throughout his campaign, but is it possible to pull the plug that promptly on a federal law that is more than two years in progress?  

That's the question Lawrence O. Gostin, JD, a law professor at Georgetown University in Washingon, D.C., explored in an article in the Journal of the American Medical Association. Mr. Gostin laid out the various routes Mr. Romney could take to kill PPACA and the potential roadblocks to each.

According to Mr. Romney's website, he will issue an executive order that paves the way for the government to issue PPACA waivers to all 50 states. Under this tentative plan, states would be able to waive all or major parts of the law. The Constitution, however, states that the president does not have the power to "refuse to execute laws passed by Congress with which he disagrees" unless Congress grants discretion.

The Constitution says the president must "take care that the laws be faithfully executed." Since the healthcare reform law does not contain a provision for waiver authority, granting states the ability to disregard key provisions could violate that clause in the Constitution.

If Romney were not able to repeal the PPACA, Congress could fail to fund the law's implementation — a strategy considered "more politically palatable," according to the Mr. Gostin. Congress can "fail to fund" in two ways: actively or inactively.

As an example of the former, Congress directly funded high-risk pools for individuals with pre-existing conditions. To withdraw those funds, Congress would have to act through legislation, which would be difficult given the current political climate. Congress did not directly fund certain prevention programs, however, making those provisions more susceptible to defunding through "congressional inaction," according to the study.

Finally, Mr. Gostin explored Mr. Romney's most-cited vow: to repeal and replace the healthcare law. This is a worrisome strategy, Mr. Gostin wrote, as it would involve a selective approach to the law in which certain provisions are axed while more popular provisions are maintained.

"If not done carefully, piecemeal replacement could result in a substantially worse product. For example, by keeping pre-existing condition coverage while eliminating the mandate, the cost of insurance might soar," according to the study.

Beyond the risky aftermath of repeal and replace, the initial odds of it occurring are unlikely. It would require President Obama to lose and Republicans to hold the House and at least 60 seats in the Senate to prevent a filibuster. "The ACA has considerable content beyond cost, such as defined benefits, public health and higher-quality services. Moreover, the fiscal effect appears positive, with the Congressional Budget Office scoring the ACA as saving $109 billion," according to the report.

More Articles on Healthcare and the 2012 Election:

3 Healthcare Policy Experts Weigh in on 2012 Election
President Obama, Romney Square Off on Healthcare in NEJM
Voters Rank Healthcare Second Most Important Issue for 2012 Campaign

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