If Mitt Romney wins the White House, he’s much more likely to set up a series of roadblocks against President Obama’s health care law than he is to wipe it off the books entirely or even block it by issuing waivers, as he’s promised.
For one thing, there’s little chance of Republicans seizing enough Senate seats for the filibuster-proof, 60-seat majority Mr. Romney would need to repeal the entire Affordable Care Act. And analysts say the health care law doesn’t contain any waivers the president can issue simply by executive order, for another.
Republicans do have a shot at gaining a simple majority in the Senate, which could allow them to ditch most of the law through the budget-reconciliation process, one of the few legislative vehicles that can’t be blocked by a filibuster.
Short of control, though, Mr. Romney will have a few tactics that he could use to revise and delay parts of the overhaul, hoping for more troops in the 2014 election.
One way would be to rewrite some of the rules the Obama administration already has handed down on the health care law, like changing the list of preventive services insurance plans must cover without co-pays — a list that controversially includes contraception, including for religiously affiliated colleges and universities.
“Romney could undo that in a flash,” said Sylvia Law, a health law professor at New York University. “He could just say sorry, contraception is a lifestyle choice, and insurance companies don’t have to cover it.”
Indeed, on the campaign trail on Wednesday, GOP vice presidential nominee Rep. Paul Ryan said that’s exactly what Mr. Romney will do: “When Mitt Romney is president, this mandate will be gone. That’s a fact.”
By contrast, the Obama administration has said it will continue putting the law in place if the president wins re-election. Most of its efforts have been focused on 2014, a major deadline when the health insurance exchanges to be up and running and the individual mandate to buy health coverage will go into effect.
“At this point, I think it would be smart to begin implementing the law, see how well the law works and then make changes if they’re needed,” said Igor Volsky, a health care analyst with the liberal Center for American Progress. “I don’t see necessarily in the next four years making any major changes.”
On the campaign trail, Mr. Romney has vowed to issue an executive order his first day in office waiving states from having to comply with the rules for the federally mandated health exchanges, but his legal authority to do so is questionable. The law currently doesn’t allow such waivers to be granted until 2017, but some lawmakers have introduced legislation to move that date up earlier.
And then there’s the option of simply directing his administration to procrastinate on putting the legislation into effect. An obvious target could be the Independent Payment Advisory Board, a new board charged with reducing Medicare costs but which Republicans complain will cut payments to doctors.
“Those folks have not been appointed [to the board],” Ms. Law said. “He could just decline to implement it, and it would be very hard to challenge.”
Other presidents have done the same thing with laws they didn’t like, said Roderick Hills, a constitutional law professor at New York University.
“He can very effectively stall on the implementation of the law in the same way Bush effectively stalled on regulating greenhouse gases,” Mr. Hills said. “He just dragged his feet. That’s all you need to do.”
Mr. Hills was referring to then-President George W. Bush, who didn’t allow his administration to develop regulations limiting greenhouse gases for the first six years of his presidency. Mr. Bush only moved forward after the Supreme Court upheld the law in early 2007, ruling that the Environmental Protection Agency has authority under the Clean Air Act to regulate carbon dioxide as a pollutant.
Mr. Obama has taken similar tactics with existing immigration law — directing his administration not to deport certain young people who agree to go to school or join the military — and with the Defense of Marriage Act, by refusing to defend it in court.
Some, such as federal Judge Brett M. Kavanaugh, have gone so far as to suggest that Mr. Romney could refuse to implement the health care law entirely, imitating Thomas Jefferson when he declined to enforce the Sedition Act on the grounds that it was unconstitutional.
But analysts say a move like that would be unlikely, given that the Supreme Court already has ruled that nearly all of the health care law is constitutional. By contrast, Mr. Obama’s refusal to argue for DOMA is a different matter because the court hasn’t yet ruled on that law, Mr. Hills said.
“The controversy is that [DOMA’s] not that obvious. The court hasn’t said it’s unconstitutional,” Mr. Hills said. “So it’s what we call an open question.”
Whatever tactics Mr. Romney chooses if he wins on Nov. 6, it’s expected he’ll do something to undermine the health care law, which he and Republicans have vowed to get rid of throughout the campaign season. Just minutes after the Supreme Court upheld the law in June, he stood in front of the Capitol building and promised to repeal the law on “Day One” of his presidency.