It won’t be easy, of course. Which is why Romney is often careful in his language on this. ““What the Court did not do on its last day in session,” he said on Thursday, “I will do on my first day if elected President of the United States. And that is I will act to repeal Obamacare.”
You catch that? I will “act to repeal Obamacare” is not the same as “I will repeal Obamacare.” Nevertheless, if Romney has a Congress willing to act with him, he can do quite a lot, quite quickly.
Romney won’t have 60 votes in the Senate. But if he has 51, he can use the budget reconciliation process, which is filibuster-proof, to get rid of the law’s spending. One objection to that is that budget reconciliation is supposed to be used for laws that reduce the deficit, and the Congressional Budget Office would score repeal of the Affordable Care Act as increasing the deficit by about $300 billion.
But so what? This is a rule Republicans have already shown themselves perfectly willing to break. The Bush administration passed both rounds of its deficit-busting tax cuts through reconciliation, using the novel interpretation that the reconciliation process simply prohibited laws from increasing the deficit after the first 10 years — that’s why Bush’s tax cuts had a sunset date of 2010.
When Democrats returned to power in 2006, they reasserted that reconciliation had to be used for real deficit reduction — a move, by the way, that they got no credit for, and that served to make their life harder over the next few years — but nothing about their decision is permanent. Republicans can, and likely will, reverse it in order to repeal the Affordable Care Act.
Getting rid of the law’s spending does not get rid of the law. As Lizza writes:
The process can only be used for policies that have budgetary effects and a C.B.O. score. Much of the A.C.A., such as the insurance exchanges and subsidies, would fall under these categories. But a lot of it, including the hated individual mandate, does not. Repealing the exchanges and subsides without repealing the mandate and the other regulations and cost controls in the law would create a health-care Frankenstein that a President Romney would be rather nuts to support.
Sure, but Romney wouldn’t be the one supporting this health-care Frankenstein. He and other Republicans would be working to repeal it. And are Democrats really going to stand together on the floor of the United States Senate and filibuster in order to keep the individual mandate in place, which will now be forcing people to buy insurance they can’t afford without the subsidies that made the whole thing work? They’d have to be suicidal to do that.
And to go even a bit further, if Mitt Romney wins the election and Republicans take control of the Senate, they should repeal the Affordable Care Act. At that point, they will have won two straight elections atop a platform in which repealing the ACA was a central, explicit promise. The American people will have spoken with unusual clarity, and part of what they will have said, whether they meant to say it or not, is repeal the ACA. If Republicans failed to follow through, they would be breaking a central campaign promise.
The interesting question, to my mind, is whether Romney would, in that circumstance, feel compelled to replace the Affordable Care Act, and if he did, what sort of policy he would come up with. A variant of that is what sort of compromise Romney would negotiate if he enters office and is facing a Democratic Senate or House. So far, I don’t think we have enough information to answer either question with any real certainty.