Former Massachusetts Gov. Mitt Romney has assured voters that he has an easy two-step plan for repealing Obamacare.
"I'll grant a waiver on day one to get (repeal) started," he said in an October debate, describing the first step.
Though it makes for a good talking point, a new Congressional Research Service report, prepared in response to a request by Sen. Tom Coburn, R-Okla., undercuts Romney.
The seven-page report, citing Supreme Court precedent, shows that the president is on shakier constitutional ground when issuing orders that cross the line from executing laws into actually making them, especially when they conflict with "the express or implied will of Congress." And, until it's repealed, Obamacare represents the will of Congress.
Romney could request that his Secretary of Health and Human Services take certain actions, but it's unlikely that the Senate will have confirmed his appointment on "day one" of his presidency, given Democratic opposition.
Even if a Romney HHS appointment were confirmed at a lightning pace, the actual language in the health care law pertaining to state waivers is quite limiting. Romney says he would grant a waiver to all 50 states, but the law specifies that the state itself has to apply for a waiver. Can we expect liberal states to apply?
Further, the waiver wouldn't eliminate a state's need to meet the requirements of Obamacare - such as expanding coverage by a specified amount - it would only grant the states flexibility in meeting them.
Any state applying for a waiver has to submit "a comprehensive description of the State legislation and program to implement a plan" that meets these requirements.
And if you still think all of that can happen in day one, here's the kicker - the state waivers couldn't go into effect before 2017.
Of course, Romney has a second step, given the limitations of the waiver process. "That's why I also say we have to repeal Obamacare, and I will do that on Day Two with a reconciliation bill," he said in the same debate.
Reconciliation is likely the only path to repealing Obamacare because the procedural maneuver only requires 51 votes in the Senate, rather than the typical 60. But it's a complex process that would be impossible to tackle on "day two," or January 21, 2013.
To start, before a health care reconciliation bill can be written, both chambers of Congress would have to pass a budget resolution. This is something that has never happened before April 1, and that usually occurs in May or June, if at all.
Once that happens, a reconciliation bill would have to go through congressional committees, and pass the House. And that's just when the fun starts.
Once the bill moves to the Senate, the only provisions that could be repealed through reconciliation would be ones that would reduce the deficit, as determined by the Congressional Budget Office.
This means that Republicans may be able to repeal spending on expanding Medicaid and offering subsidies to individuals to purchase insurance on the new government exchanges, but they'd likely be unable to touch the onerous regulations or tax increases.
And the Senate parliamentarian would have to go through the bill on a paragraph-by-paragraph basis to see if each provision holds up. If anything gets struck down, it has to go back to the House.
In other words, repealing Obamacare is much more difficult than Romney is making it seem. Knowing what we know about his penchant for political expediency, is it realistic to expect he'd dedicate the first months of his presidency to this grueling process?
Philip Klein is senior editorial writer for The Examiner. He can be reached at email@example.com.