Gov. Mitt Romney has repeatedly promised that, if elected, he would act on day one of his presidency to repeal the Affordable Care Act (ACA). As president, would Romney actually have the ability to repeal the ACA? If so, what would it take?
In order to actually repeal the statute, mathematically, Romney would need a majority vote in both the House of Representatives and the Senate. Currently, Republicans are in control of the House, which consists of 240 Republicans and 190 Democrats. The Senate, on the other hand, is controlled by Democrats by a count of 51 to 47, with two independent senators.
This marks the first congressional election based on the congressional districts derived from the 2010 Census. While all of the 435 seats in the House will be up for election, only a handful are truly considered to be "up for grabs." There are also 33 Senate seats at issue in this upcoming election. Those seats are currently held by 23 Democrats, 10 Republicans and two independents who both caucus with the Democrats. Therefore, in order to actually repeal the ACA, Romney would need to maintain the Republican control of the House, and he either needs Republicans to gain control of the Senate or convince Democrat/Independent senators to vote in favor of repeal.
Regardless of the composition of Congress, there are other issues that come into play and require a further understanding.
Filibusters
Unique to the Senate, a filibuster occurs when a member of the Senate takes to the podium and gives an exceptionally long speech in order to prevent a vote from taking place. In the Senate, a three-fifths vote (60 members) is needed to shut down a filibuster. Republicans are not likely to secure the necessary 60 seats. Therefore, even if Republicans gain control of the Senate, any attempt to push a vote to repeal the ACA through will likely be blocked by a filibuster.
Reconciliation
Budget Reconciliation is a legislative process that allows Congress to amend an existing statute with a simple majority of votes, provided the modification results in deficit reductions. It is a fairly controversial tactic; however, it is important to mention that following the death of Sen. Ted Kennedy, it was used to pass the ACA when Democrats lost the supermajority necessary to block a Republican filibuster. Should Mitt Romney be elected president and Republicans take control of both the House and Senate, then use of reconciliation will be one option that may allow the ACA to be modified by removing some essential terms of the statute, such as the creation of the exchanges and use of subsidies. In this circumstance, a reconciliation may not technically result in repeal, but in essence, it would have the same effect.
Executive Order
If Gov. Romney is elected president but Republicans do not gain control over both houses of Congress, then he may use Executive Orders to reduce the breadth of the ACA. Gov. Romney publicly stated that he would issue Obamacare waivers to all 50 states, making them exempt from complying. The ACA allows for these waivers subject to various restrictions. Individual states would need to apply for the waivers through the Secretary of Health and Human Services. Some states are likely to be interested, but others may reject the waiver offer. Additionally, these waivers would not take effect until 2017. Ses Scott Brown (R-Mass.) and Ron Wyden (D-Ore.) have sponsored a bill aimed at moving the effective date of the waivers to 2014. The use of an Executive Order in this fashion would be consistent with Romney's stated goal to empower the states to choose whether the ACA fits each state's needs; however, the usefulness of waivers is largely dependent on the date they become effective.
Budgeting
The federal budget is another tool that Gov. Romney may use to delay enforcement of the ACA. The Budget and Accounting Act requires that the President submit the annual budget. Therefore, Gov. Romney, if elected, would have the authority to cut the funding required for the ACA to succeed, which could result in delays in enforcement until such time as it is either repealed or waivers are able to take effect.
The Reality of Repeal
Gov. Romney has been careful to state that on day one he will "act to" repeal the Affordable Care Act, as repeal could not happen that quickly. Actual repeal of the Affordable Care Act faces several challenges. In fact, even through reconciliation, it would require that the movement to repeal or suppress the terms of the ACA be supported by a majority in both houses of Congress. However, if elected, President Romney will have means to hinder its effectiveness. After surviving one of the largest Supreme Court Reviews of a statute in the history of our nation, the future of the Affordable Care Act may still depend on it persevering past one last obstacle -- the 2012 election.