Would repeal of ACA even be feasible?

Among the more grandiose claims repeatedly being pledged along the Republican presidential campaign trail is that each of the hopefuls would repeal the Patient Protection and Affordable Care Act (ACA) – but does a president even have that power?

Newt Gingrich and Mitt Romney, for instance, have mentioned signing an executive order on day one, if either were elected. Such a document, however, is merely the beginning of a lengthy process. Ron Paul, a former Air Force surgeon, has a long list of how he would improve America’s healthcare system, including expanding health savings accounts and adding some tax breaks. And Rick Santorum promises to institute patient-centered healthcare after repealing the ACA.

Repeal. That’s the big healthcare promise candidates are vowing to prospective voters but, in reality, it simply cannot be accomplished in one day, if it can be delivered at all.

Only Congress can repeal the ACA

Joseph Antos (pictured at left), an analyst for the American Enterprise Institute for Public Policy Research is skeptical about presidential election healthcare promises. “Politicians operate on the concept that anything they promise, they don’t have to keep,” he says.

Antos is not naïve when it comes to Washington and healthcare. In addition to conducting research on the economics of health policy for AEI, he is a commissioner of the Maryland Health Services Cost Review Commission and a health adviser to the Congressional Budget Office.

“On the Republican side, all candidates say words that seem to mean repeal, but of course, the president alone can’t repeal anything,” Antos explains. “A repeal of a federal law requires Congress’ complicity. If Republicans manage to keep a majority in the House, they are not so likely to get a majority in the Senate, and they won’t have 60 votes to overcome filibusters.The bottom line is, if the Republicans take the White House, they could certainly start the ball rolling [on repeal], but it’s really up to Congress to take that action.”

Antos also points out that there are many things in the healthcare landscape that will change by next January. For starters, the Supreme Court hearing slated for late March may give some kind of resolution to an incredibly divided nation on the topic, or it may muddy the waters further. Beyond that, a new Republican president’s constituents may like some of the privileges they have gained through ACA, and may even want to retain some of them, which would no doubt make it politically difficult to repeal the law.

Antos offers a case in point. Most of the ACA won’t take effect until 2014, but some provisions have been instituted already. One of those is the right for children up to age 26 to remain on their parents’ healthcare plans. In all fairness, Antos says, this particular provision is not at the heart of opponents’ concerns. But, “what it illustrates, is how difficult things are to repeal,” Antos continues. “Once you start looking at it more carefully – what can you take out, what reacts with what — it gets to be very complicated. You can’t remove provisions without putting something in their place.”

Republicans campaigning on ACA repeal would need an alternative, and no one has shared much in the way of intentions regarding how they would proceed. “It’s one thing for the candidates to have a plan of action,” Antos adds. “It’s a complicated process to make that happen.”

Romney has said if he were elected, he would issue state waivers to eliminate the ACA. Antos points out that a state must ask for a waiver. No president can force a state to waive an exisitng law. There will be some states, Texas, for example, that might like to waive everything about ACA. Other states, such as New York, Massachusetts and California are unlikely to even apply for a waiver, if it would mean the state gets less federal money, Antos says. Eleven states, in fact, have publicly banded together to ask the Supreme Court Justices to uphold the law.

Republicans might have more luck trying to block certain aspects of ACA by keeping the Department of Health and Human Services from meeting deadlines. If that happens, it’s possible many things would go by the wayside.

“If it doesn’t make sense, it won’t work.”
Antos offers criticism of the Democrats, too.  Measuring by the letter of the law, Antos says, none of President Obama’s “big promises” about healthcare reform are true. Saving money, broader coverage, and beneficiaries being able to keep their same coverage, have not yet become reality. The federal government doesn’t have control over these things. Under ACA, premiums are going to go up for people already insured, Antos says. “Obama’s health advisers are well aware of this, but they won’t admit it.”

If Obama wins the election, he’s going to push his health reform through as scheduled in 2014, but it may mean “an actual and a public relations disaster,” Antos adds. “In reality, many of the states, including states that really want to do it, are woefully unprepared.” Obama may end up having to get Congress to pass a law to delay implementation, which would reduce the magnitude of ACA’s expansion.

Money will also play a part in the landscape for Obama. There will be a budget battle of equal proportion to that of 2012 – if not worse – over the 2013 budget. One of the only places left to cut is healthcare spending, Antos says. If the economy is doing better, Obama may not want to stop that progress. It would be hard for him to say, “happy days are here again, but we’ve got to keep spending.”

The Obama Administration has spent billions through the stimulus package to promote the advance of health IT. This IT is a big part of Obama’s plan to make healthcare more efficient and to help with building new reimbursement models, including accountable care organizations (ACOs). These won’t get off the ground smoothly, Antos predicts. “There has been a groundswell of non-support. The way [the federal government] has mishandled this, really boggles the mind.”

With ACOs, the government is essentially telling providers to “create a business the way we want you to. You take the risk. And, you have to save us money,” Antos says. “No matter what kind of Democrat you are, you wouldn’t want to take that kind of business risk. If it doesn’t make sense, it can’t work.”

“What you promise on the trail, you have to try and keep”

When Republican candidates are promising to repeal the healthcare reform law, “they sincerely think they mean it.” That’s an assertion of Dean Rosen (pictured at right), partner at the law firm Mehlman Vogel Castagnetti in Washington, D.C. Rosen is an associate professor at George Washington University School of Public Health, the former chief health adviser to Senate Majority Leader Bill Frist, MD (R-Tenn.), and a former majority counsel for the House Ways and Means Health Subcommittee.

“I firmly believe that what you promise on the trail, you have to try and keep,” he adds. However, “it is going to be tricky” to have to try and keep this one, to repeal the health reform law. “It’s a long, detailed and complex law, touching so many areas,” Rosen says. But that likely won’t stop Republicans.

If the election results in a Republican Congress and a Republican president, Rosen predicts that the new president will “certainly make good” on his promise to repeal. “You can’t wipe out an act of Congress with an executive order,” Rosen explains. “But it could be done with more time.”

In all reality, though, it’s not likely to be that simple. There are so many different scenarios that could happen with the various configurations in Congress – and all the scenarios are coupled with the Supreme Court decision – making it complex. If a Republican takes the White House and Republicans gain even a bare majority in the Senate, you can bet “dollars to dollars,” they will make an attempt to repeal as much as possible of the health reform law through the budget.

The Supreme Court decision in March will have a definite impact on how and what the candidates will promise afterwards. If the Supreme Court rules that the individual mandate is unconstitutional, it is possible but by no means predictable that the Supreme Court could strike down the whole law.

Other questions the court will have to consider are whether the expansion of Medicaid is unconstitutional and if the Anti-Injunction Act will come into play, which would determine if the whole case is ripe enough to be heard. Depending on the election outcome scenario and the status of the healthcare reform law after the Supreme Court decision, another risky issue for presidential candidates is the replacement of the law after it is repealed. The new president will need to provide “direction and promise” on healthcare reform, Rosen says.

Follow Diana Manos on Twitter, @DManos_IT_News. For more of our primaries coverage, visit Political Malpractice: Healthcare in the 2012 Election.