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The Power to Block the Affordable Care Act: What are the Limits?

JAMA Online, Vol. 308, No. 19, 2012

Georgetown Public Law Research Paper No. 12-190

3 Pages Posted: 5 Dec 2012  

John Kraemer

Georgetown University Law Center; Georgetown University - School of Nursing & Health Studies

Lawrence O. Gostin

Georgetown University - Law Center - O'Neill Institute for National and Global Health Law

Date Written: November 21, 2012

Abstract

Though Supreme Court upheld most parts of the Affordable Care Act (ACA), Congress’ goals in enacting it could still be frustrated by non-implementation. During his campaign for president, Governor Romney promised “to issue Obamacare waivers to all fifty states.” While such blanket waivers would likely violate the Constitution’s Take Care Clause, the ACA does permit other waivers. To be lawful, however, they must meet certain requirements designed to enhance access and lower cost. A president who opposes the ACA might be able to limit its implementation by refusing to issue premium subsidies in federally operated insurance exchanges, and this might be deemed a reasonable interpretation of the ACA because of a drafting error Congress made. Additionally, a president who opposes the individual mandate might be able to limit its effectiveness by directing the IRS not to make collecting the mandate’s tax penalty a high priority, and it is unclear whether the courts would accept the constitutionality of such an approach.

Although President Obama won the election, Congress could choose not to fund key parts of the ACA, but it lacks the votes to repeal the Act. Many parts of the ACA, including the health insurance exchanges and high-risk pools for people with pre-existing conditions, were directly funded and, therefore, would require an act of Congress to de-fund. Other components, however, including many relating to health workforce expansion, quality improvement, and some prevention programs were not directly funded, so they could be starved of money through Congressional inaction.

Keywords: Affordable Care Act, health insurance, Obamacare, Medicaid, Congress

JEL Classification: K00, K30, K39

Suggested Citation

Kraemer, John and Gostin, Lawrence O., The Power to Block the Affordable Care Act: What are the Limits? (November 21, 2012). JAMA Online, Vol. 308, No. 19, 2012; Georgetown Public Law Research Paper No. 12-190. Available at SSRN: https://ssrn.com/abstract=2184933

John Kraemer

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Georgetown University - School of Nursing & Health Studies ( email )

3700 Reservoir Road
Washington, DC 20057-1107
United States

Lawrence O. Gostin (Contact Author)

Georgetown University - Law Center - O'Neill Institute for National and Global Health Law ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9038 (Phone)
202-662-9055 (Fax)

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