Repeal and the Mechanisms of American Government

Electing Romney hardly means repeal of the PPACA, even if he will make it sound that way.

As Doug Mataconis noted yesterday, Mitt Romney made the following promise in reaction to the Supreme Court’s ruling on the PPACA:

“What the Court did not do on the last day in session, I will do on my first day if elected president of the United States, and that is that I will act to repeal Obamacare.”

It a promise he has made in various iterations for some time now.

Of course, it is at best a simplistic take on what a change in administration would mean, and at worst it is a gross misrepresentation of what a president can do.

There is little doubt that replacing Obama with Romney increases the odds of repeal.  This is because an Obama second terms means that a hypothetical repeal would be vetoed (as there is no way that there will be a 2/3rds majority in both houses available to override such a veto).  However, the election of Romney simply means that veto threat goes away, raising the chances of repeal from 0% to nearly 0%.

The real issue is, rather obviously, the issue of the make-up of the Congress, especially that of the Senate.  While it seems likely, if not nearly certain, that the House will remain in Republican control, the Senate is a another matter.  Further, as we should all well know by now, the Senate has increasingly  operated under super-majority rules that require 60 votes to do much of anything, to to mention that  individual Senators have been allowed a number of individual blocking (or, at least, delaying powers).

If the GOP is able to gain control of the House, Senate, and White House come January 2013, I expect that a large number of the party and their allies in the commentariat are going to discover great frustration with the  power of the minority in the Senate and we will likely hear a lot of griping about how Democrats are blocking the will of the people who, they will argue, are opposed to the PPACA.

All of this leads to a number of observations:

1.  It is unfortunate that we tend to reduce our understanding of government to the occupant of the White House.  The candidates, reporters, supporters, etc. have a tendency to simplify the complex structure of the US government to the presidency.  This is a disservice to the general public, as they tend to think that everything hinges on who the president will be, and it is lets Congress off the hook in terms of responsibility.  This is all unfortunate, because it takes focus away from the institution that makes domestic policy and further deflects attention from the labyrinth that is legislating (even without taking into account the filibuster rule).

2.  This all again raises the question of whether empowering the minority party in the Senate is a a good thing.  If, in fact, the Republicans could successfully campaign on repeal and then gain control of the three key actors:  House, Senate, and Presidency, shouldn’t they be allowed to enact that policy?  Under our current system, it takes not just winning an election to be able to have a chance to put one’s policies into practice, but it requires landslides of historic proportions to be allowed to even try.  And even then it takes a bit of luck.  Consider that the PPACA would not have been passed in the first place had  Al Franken not won a very close Senate race in Minnesota and had Arlen Specter not switched parties (because even given the strong Democratic showing at the polls in 2008, the Democrats still did not have 60 votes in the Senate—it took a party-switch to get it).  Further, we end up with the specific version of health care remove that we did because it became frozen in place with the death of Senator Kennedy and his replacement in a special election by Senator Scott Brown.

Consider:  unusual circumstances made the law possible, and unusual circumstances meant that further changes became impossible.  These are not the signs of healthy institutional constructs and underscore the difficulties that Republicans will have with repeal.

3.  Of course, the question of the popularity of repeal is more complicated than opponents of the policy make it out to be.  Opponents claim, correctly, that polling indicates less than majority support for “Obamacare.”  But, of course, supporters correctly point out that the individual components of the policy are mostly quite popular.  So, Republicans can talk about supporting repeal, but if the legislative rubber ever actually meets the road, they will have a conundrum on their hands as to how to keep the popular parts whilst discarding the unpopular ones (like the mandate).  Part of the problem there, of course, is that a lot of the popular ones (such as the provision on pre-existing conditions) won’t function properly without the mandate (or some other, likely also unpopular, mechanism, since the issue at that point is paying for the popular parts with less popular ones).

4.  It is also worth noting that true, full repeal is not so easy, because there are the aforementioned popular provisions will be difficult to cancel, but unwinding a complex policy that has been at least partially implemented (and becomes increasingly implemented over time), is harder than simply voting on a repeal.

At a minimum, an honest assessment of this situation should focus on the roles played by separation of powers, bicameralism, and the filibuster, not on simplistic fantasies about new administrations.

I also think that it will be interesting to see how Republicans react to their circumstances should they find themselves in charge of unified government.  I wonder how many supporters of repeal will be content with the notion that we have a number of anti-majoritarian elements within our institutions of governance.

FILED UNDER: 2012 Election, Healthcare Policy, The Presidency, US Politics, , , , , , , , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter


  1. I think a hard-right fantasy is crashing on the rocks today. It was “strike down ObamaCare and destroy his legacy.”

    The “arc of failure” they wanted to sell just got a whole lot harder to show.

    In fact, the arc might be on the other foot.

  2. Herb says:

    @john personna: No disagreement that “Repeal and Replace” is a hard-right fantasy….but not so sure it’s crashing on the rocks. Kind of almost seems like it’s just now leaving port.

    (What crashed on the rocks was the fantasy that the SC would be the free safety that made up for a less-than-talented linebacker corps.)

  3. @Herb:

    As I remember it, people like me would say “You know, the President taught Constitutional law. He might know what he’s doing with the mandate (as tax)”. In response we’d get “Oh no, he’s just a jumped up community organizer.” It was either that, or a story of dire circumstances, should the thing pass … dogs and cats, sleeping together.

    I don’t think we should forget, today Friday, how big the Constitutional complaint was. It was the #1 reason given to hate ObamaCare. And this was tied to an “incompetency” argument. The bad effects, the dogs and cats, the uncertainty, were all secondary.

    I think the Republicans are caught flat-footed. They didn’t expect to have to “lead with dogs and cats” going into the election. They didn’t expect the courts to say the President knew his law, and was competent.

  4. al-Ameda says:

    It will definitely be a conservative republican fantasy unless they sweep the senate and take the presidency.

    Even then, as the public continues to become comfortable with many prominent provisions of ACA – cannot be denied for pre-existing conditions, maintain dependents on policy until the age of 26, break down the premium cost differential between men and women, and much more- it will very difficult for the GOP to do anything but stomp their feet and threaten to hold their collective breath until ACA goes away.

  5. @al-Ameda:

    Right, and it’s important to note how “cannot be denied for pre-existing conditions” and the mandate go together.

    Some conservative commenters here at OTB worried yesterday that the ACA would bankrupt private insurance companies … well, if you want to do that fast, keep the “cannot be denied” and drop the mandate.

  6. Jeremy R says:

    Part of the problem there, of course, is that a lot of the popular ones (such as the provision on pre-existing conditions) won’t function properly without the mandate (or some other, likely also unpopular, mechanism, since the issue at that point is paying for the popular parts with less popular ones).

    And yet oddly, Romney is now claiming he’s somehow going to deal with pre-existing conditions in his “Replace” proposals. I’d love for someone to interview him and pin him down on how exactly he’s going to pull that off without the mandate and with massive tax cuts, as he definitely didn’t seem to think it possible when he was passing his own HCR (he employed both the mandate and “fees” and defended their necessity).

  7. Just Me says:

    Even if Romney wins and the GOP takes over the senate with a commanding lead and holds the house, I don’t see a repeal of Obamacare.

    I think at most they may tweak some of the aspects of it, but generally whenever an entitlement program is created it doesn’t get repealed.

    I also think the “repeal” promise is meaningless unless candidates start talking about what they intend to replace it with.

  8. gVOR08 says:

    @Jeremy R: I’d love to see someone interview Romney and pin him down on anything. I am so looking forward to the debates.

  9. Ron Beasley says:

    @Jeremy R: If the Republicans take all three branches they will find a way to repeal what is essentially a Republican plan. They will then:
    a) Replace it with nothing.
    b) Replace it with something that is nearly identical.

  10. grumpy realist says:

    @Ron Beasley: Probably replace it with nothing. It’s only people who haven’t planned enough who get cancer/diabetes/heart attacks, donchyaknow?

  11. Ron Beasley says:
  12. rudderpedals says:

    @Jeremy R: Earlier this week Romney disclosed his approach to pre-existing conditions. In his world it’s resolved by covering pre-existing conditions so long as there was no break in coverage ever. No, it doesn’t make sense nor does it do anything different than pre-ACA and obviously it ignores the job lock problem, people moving or changing jobs, and the simple wrongness and base inhumanity of pre-aca insurance.