Could Romney Repeal The Health Law? It Wouldn't Be Easy

By Julie Rovner

Published October 30, 2012 at 10:13 AM CDT

Republican presidential candidate Mitt Romney speaks about the Supreme Court ruling on health care in Washington on June 28.

You can barely listen to former Massachusetts Gov. Mitt Romney make a speech or give an interview without hearing some variation of this vow:

"On Day 1 of my administration, I'll direct the secretary of Health and Human Services to grant a waiver from Obamacare to all 50 states. And then I'll go about getting it repealed," he told Newsmax TV in September 2011.

But there are two big questions there. First of all, could a President Romney actually stop the health law in its tracks? And if he did try, what would happen?

First, it turns out that stopping the law may be harder than the law's opponents realize. For one thing, if he's elected, Romney can't just grant waivers letting states ignore the law on his first day as president.

"There are waivers under the law, but not an across-the-board waiver," said Tom Miller, a lawyer with the conservative American Enterprise Institute. For the record, Miller is an avid opponent of the health law. But he's also a veteran of Capitol Hill and knows what can and can't happen.

"You can try anything under the law," he said. But in many cases, "a federal court will usually step in and say, 'You've gone a little bit too far.' "

In this case, the part of the law that allows the president to grant states waivers doesn't actually kick in until 2017. And even the waivers that are allowed require states to cover as many uninsured people as would be covered by the Affordable Care Act.

Health industry consultant Robert Laszewski — also no big fan of the law — says federal courts would likely block a lot of things Romney might try to do unilaterally, like simply cut off funding or tell his staff to stop enforcing it.

"Sure, he can rewrite the regulations for example ... but fundamentally, he can't change the law," he said.

And even rewriting regulations would take months, at best.

That brings us to the repeal part of Romney's promise.

If Republicans gain control of Congress, they plan to use a fast-track procedure called budget reconciliation to repeal major chunks of the measure. Budget reconciliation can't be filibustered and needs only 51 Senate votes rather than the usual 60.

But there are a couple of problems with that, says Laszewski. One is that it's more time-consuming than many people realize.

"Budget reconciliation rules require them to have a budget resolution, and require them to be able to vote out the changes, and that timetable will take him to at least mid-year," he said.

Indeed, since 1980 Congress has passed 19 budget reconciliation bills; The one that moved fastest got signed into law May 28, 2003. (A few took more than a year to become law.)

Meanwhile, the health law will still be in effect and the clock will still be counting down. So even as Congress may be working to undo the law, he says, states will still face deadlines to put important features in place.

"Every state legislature's got a decision to make about whether they build an insurance exchange or not," Laszewski said. "Everyone has sort of treaded water until the election — then we're go or no go. If Romney's elected, it's like - we don't know what's going to go or not. And it's just going to be one hell of a mess."

There's still another complication. It turns out that not all of the law can be undone using the budget process. Things like requiring insurers to accept people with preexisting health conditions would almost certainly need the same 60 votes to undo it as they needed to pass it in the first place. Laszewski says that could cause problems of its own.

"So now we could be sitting here with reconciliation having stripped out all the money, on Jan. 1 every sick person in America is showing up, getting their guaranteed-issue health insurance, and it's just going to ravage the insurance pools, drive the cost of insurance way high," he said.

That, he says, is a recipe for total chaos.

"We're playing with gasoline here," he said. "This is one-sixth of the economy ... sitting on the ledge here wanting to know which way we're going to go."

Tom Miller of the AEI agrees that key parts of the health care sector have been doing a lot of waiting around for the election — and that given the short timelines, chaos is likely next year no matter who wins.

"If you implement it in its entirety you'll also cause chaos in the market — would be my rejoinder," he said. "We're going to have chaos in either case."

But the law has already put a lot of changes in place. So taking it apart, particularly given the potential legal and legislative difficulties, will be no easy task.