Romney's Pledge to Repeal Obamacare If Elected: Can He Do It?

Experts say he can tinker with the law but is unlikely to succeed in scrapping it.

As President, Mitt Romney could make changes to the Affordable Care Act, but it's unlikely he would be able to repeal the law. (Photo: Alex Wong/Getty Images)

Sep 27, 2012· 3 MIN READ
Shari Roan is an award-winning health writer based in Southern California.

It's one of Gov. Mitt Romney's favorite pledges on the campaign trail: "If elected, I will repeal Obamacare on day one." However, a range of analyses by political and healthcare think tanks suggests that it would be difficult for Romney, as president, to erase the landmark Affordable Care Act.

Whether Romney could repeal the act has personal significance for millions of Americans who are affected by its provisions. The act, signed into law in 2010 and upheld this year by the Supreme Court, represents the biggest change to the U.S. healthcare system since the founding of Medicare and Medicaid almost five decades ago.

The act contains many regulations, but its overall aim is to reduce the number of uninsured Americans by requiring people to carry health insurance and by making that insurance affordable. The bill also prevents insurers from denying coverage to people with pre-existing conditions and allows parents to keep their children on their family insurance plan until age 26.

While the latter two provisions of the law are popular nationwide, conservatives, including Romney, have blasted the bulk of the plan, nicknamed Obamacare, as too costly and emblematic of government over-reach.

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As confident as Romney sounds, as president he couldn't simply repeal the act on his first day in office, healthcare analysts say.

Romney's claim "is a gross exaggeration and misunderstanding of what the office does," Bryan Fisher, a spokesman for Families USA, told TakePart. Families USA is a national nonprofit, nonpartisan organization devoted to improving access to healthcare. "People are cognizant of the fact that the president is a powerful man but not an all-powerful man. I also think people, at this point, are pretty jaundiced about what a president can do on his own."

Romney's best hope of erasing Obamacare lies in the Republican party winning control of both houses of Congress, which is unlikely to occur in the upcoming election based on current polling. Republicans would need to hold a 60-vote majority in the Senate to stave off filibusters and repeal the act.

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Short of that Senate majority, Romney would need to craft together a stunning bipartisan agreement to repeal the law. But a snowstorm in July might be a more likely occurrence in Washington, politicos say.

"The sheer level of polarization that we have in Congress" makes the chances of such an agreement remote, Fisher says. "Congress is a place where compromise goes to die."

Outright repeal of the bill may even meet with opposition by the majority of Americans who, as time goes by, are likely benefiting from some aspects of the law, he adds. According to a report released today by Families USA, families buying health insurance on their own in 2016 would pay almost twice as much—$11,481 compared to $5,985—if Romney's healthcare plan replaced the Affordable Care Act. The analysis also concluded that, under the ACA, the number of uninsured Americans in 2016 will be reduced by 30.7 million while Romney's plan would boost the ranks of the uninsured to 11.2 million in that time frame.

Romney's planned cuts to Medicare and Medicaid would dramatically alter the healthcare system for everyone, Dr. Stuart Altman, the Sol C. Chaikin Professor of National Health Policy at Brandeis University, said today in a news conference sponsored by Families USA.

"What will happen if Obamacare is repealed and the changes that [Gov.] Romney indicated come about is that almost every healthcare provider will see significant reductions in revenue," Altman said. "There is no way, with the kinds of reductions we'll see, for the continuation of our healthcare system in its present form. ... Most of us not directly affected by the passage of Obamacare will, in fact, see a reduction, and maybe a significant reduction, in the quality and access to care that we will receive."

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Romney's pledge that he would repeal the act on his first day in office is nuanced. According to his campaign Web site, he will "issue an executive order that paves the way for the federal government to issue Obamacare waivers to all fifty states. He will then work with Congress to repeal the full legislation as quickly as possible. ...In place of Obamacare, Mitt will pursue policies that give each state the power to craft a health care reform plan that is best for its own citizens. The federal government’s role will be to help markets work by creating a level playing field for competition."

The best Romney could do is to chip away at aspects of the bill, and even that would take many months or years to accomplish, says Timothy Jost, an attorney and author of a detailed analysis of Romney's pledge that appeared last week in the Health Affairs Blog.

Jost, the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law, says there are no specific "Obamacare waivers" that could be issued by executive order. One section of the Affordable Care Act permits "waivers for state innovation." But these waivers, Jost writes in Health Affairs: "...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."

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As President, however, Romney could tirelessly meddle with many of the law's provisions, experts say. According to Jost, he could use the budget reconciliation procedures to amend or repeal provisions of the ACA that directly involve the budget, such as increase Medicaid expansions or changes regarding tax credits. But budget reconciliation, Jost writes: "...could not, however, be used to change the insurance market reforms, such as the ban on health status underwriting or the pre-existing conditions clause ban. Large parts of the ACA, therefore, can only be amended by a vote of 60 senators."

If Mitt Romney is elected president, do you think he'll be successful in reversing the Affordable Care Act? Let us know in the comments.