The platform approved Monday at the Republican National Convention suggests that a future Republican administration could dismantle Obamacare using regulatory authority. A Republican president could not waive portions of the law, but he could act to stop controversial payments that are being made to insurers.
In its section on health care, the platform pledged of Obamacare: “a Republican president, on the first day in office, will use legitimate waiver authority under the law to halt its advance and then, with the unanimous support of Congressional Republicans, will sign its repeal.” The waiver concept echoes language used by 2012 Republican nominee Mitt Romney, who pledged that “If I were president, on Day One I would issue an executive order paving the way for Obamacare waivers to all 50 states.”
The “legitimate waiver authority” provided under the law is unlikely to grant the type of relief the Republican delegates or Mr. Romney envisioned. Language in section 1332 of the Affordable Care Act addresses the waiver of some provisions of the law. The waivers, however, apply only to states, not to individuals. They also apply only to a few delineated sections of the law, including the individual and employer mandates.
As I wrote last July, the waiver authority in the law allows changes in just one direction. States can cover more people or provide more generous insurance coverage than Obamacare does, but they cannot make changes that deviate from the law’s objectives—such as implementing health savings accounts or consumer-directed health plans. This amounts to the administration and Obamacare offering little flexibility to states whose leaders’ philosophical objectives differ from their own. A Republican administration is likely to bring in regulators with a different philosophy, but the statutory strictures would not change unless and until Congress acted.
It’s worth noting, however, that the Obama administration has made several unilateral decisions about a series of supplemental payments to insurers—regarding reinsurance, risk corridors, and cost-sharing subsidies. Because these payments were provided without the usual notice-and-comment period in rule-making, a Republican administration could take its own steps to end the billions of dollars in payments to insurers. If a future president wants to “waive” portions of Obamacare on Day One, these controversial payments would be the most feasible objective.
This post was originally published at the Wall Street Journal Think Tank blog.