Mitt Romney is walking a rhetorical tightrope when it comes to presidential waivers.
The presumptive Republican presidential candidate has accused President Obama of running roughshod over federal law by offering states waivers to the work requirements included in 1996’s welfare reforms. But the former Massachusetts governor has also pledged to issue, on the first day of a Romney presidency, his own waivers that would allow states to opt out of Mr. Obama’s signature Affordable Care Act.
Sharp exchanges last week between the campaigns over waivers to the welfare law provided a glimpse into how both candidates view the power of the presidency and the extent to which the commander in chief can alter or ignore laws passed by Congress.
The Obama administration argued that it was “clearly authorized” to waive some of the work requirements in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 — a move that the Department of Health and Human Services said would allow states to devise more effective ways to put more recipients of Temporary Assistance for Needy Families (TANF) — otherwise known as welfare — to work.
“It is consistent with the Obama administration pattern recently of advancing policies that they can’t get through Congress and doing it through executive fiat, regardless of whether they have the legal authority to do so or not,” Jonathan Burks, Romney campaign’s deputy policy director, said in a conference call with reporters.
Andrew Grossman, of the the Heritage Foundation's Center for Legal and Judicial Studies, agrees the administration is out on a legal limb.
“There is absolutely no indication, in the text of the 1996 act or otherwise, that Congress intended to allow the waiver of that act’s centerpiece provision: its work requirements,” Mr. Grossman wrote last week. Mr. Obama’s proposed waivers, Mr. Grossman wrote, are “a violation of the law, a violation of the Constitution’s vesting of legislative power in the Congress, and a violation of the president’s fundamental duty to faithfully carry out the laws.”
Mr. Romney, though, faces similar questions with his promise to exempt states from Mr. Obama’s biggest legislative achievement, 2010’s Affordable Care Act, which the Supreme Court for the most part upheld in a 5-4 decision this summer.
“On Day One of my administration I will direct the secretary of health and human services to grant a waiver from Obamacare to all 50 states, and then I will go about getting it repealed,” Mr. Romney has pledged on several occasions.
The good news for the former Massachusetts governor is that, unlike welfare reform, there are clear waiver exemptions written into the ACA.
But Judith Solomon, vice president for health policy at the left-leaning Center on Budget and Policy Priorities, said the executive authority to offer those waivers doesn’t become effective until 2017 — which would push such an action off until the start of a prospective second Romney term.
There are some signs that the date could change, Ms. Solomon said.
Last year, Mr. Obama voiced support for legislation that would move up the dates for states to be able to apply for waivers from 2017 to 2014.
Even then, eligible states would have to show that they would be just as successful in delivering health care services.
Dan Mendelson, CEO of Avalere Health, a consulting firm for health care companies, and former associate director for health at the Office of Management and Budget (OMB), said that Mr. Romney will still have other tools at his disposal to slow the implementation of the president’s health care plan by cutting off funding to the state health exchanges, and delaying various aspects of the law.
“Romney would have very broad flexibility to slow down the implementation of reform and in some places to halt it, but that state waiver authority is restricted under the law,” he said.
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