The Reality of Repealing Obama's Health Care Law

PHOTO: Republican presidential candidate, Mitt Romney speaks about the Supreme Courts health care ruling in Wash., D.C, June 28, 2012.
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Within minutes of the Supreme Court's ruling to uphold the president's health care law on Thursday, both Congressional Republicans and the GOP's presumptive presidential nominee, Mitt Romney, vowed to repeal the law as well.

Senate Minority Leader Mitch McConnell restated that vow Friday, saying on the Laura Ingraham radio show that if Romney wins and the GOP gains a majority in the Senate, repealing Obamacare "is the first item on the agenda."

But can they?

If Romney wins the White House, his power to gut or eliminate the law is severely limited without the help of Congress. And with slim odds that the GOP will win a filibuster-proof majority in the Senate, congressional Republicans face a steep climb to repeal the president's signature law.

Such long odds have not deterred the law's opponents, though. After the Supreme Court ruled on the health care law, House Republicans quickly promised that they will once again act to repeal the law in its entirety July 11.

That vote is expected to pass easily, much like when the House first voted for repeal Jan. 19, 2011, approving the measure 245-189. House Republicans have already voted 30 times to disrupt, dismantle, defund and repeal provisions in the health care law. No similar attempts have passed in the Senate.

After Chief Justice John Roberts announced the decision Thursday morning, Mitt Romney rushed to the National Mall, with the Capitol Dome perched over his shoulder, to promise to repeal the law on Day One of a Romney presidency.

"What the court did not do in its last day in session, I will do on my first day if elected president of the United States," Romney pledged. "I will act to repeal Obamacare."

The "act" in Romney's sentence might be the key word. He cannot, as president, use an executive order to single-handedly repeal a law that was passed by Congress and upheld by the Supreme Court. But there are three possible ways Romney could go after the Affordable Care Act using executive power, said Michael Dorf, a constitutional law scholar at Cornell Law School.

First, Romney could direct the departments charged with administering the law to grant the states any and all waivers that were written into the law. Because there aren't many of these waivers and those that do exist don't take effect for years, this method would not disable the law quickly enough to appease the GOP and meet his Day One timeframe.

Second, he could instruct his administration not to enforce the law. This tactic is similar to Obama's decision that his administration would no longer deport undocumented immigrants, "but on steroids," Dorf said.

"It's not that he would be prioritizing one part of the act above another, he would be saying he wouldn't do any of it," Dorf said.

Obama's immigration decision "was at the edge of what a president can do," he added. "What Romney would be proposing to do would go way beyond that."

Romney's third and most "radical" option, Dorf said, would be to assert an independent duty as president to act on his own interpretation of the Constitution, despite the Supreme Court's ruling. Thomas Jefferson was the last president to use this line of reasoning in 1801 when he refused to prosecute people under the Sedition Act, which made it a crime to publish "false, scandalous, and malicious writing" against the government or certain officials.

While this option would be the most effective way to quickly and fully repeal the law, Dorf said, it would be like "playing with fire."

"It is possible he could do it and get away with some of it, but it would be at the cost of sparking a Constitution crisis," Dorf said.

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