I owe Mitt Romney an apology.
During the 2012 Republican presidential primary season, I repeatedly criticized Romney — and personally challenged him during his editorial board meeting with the Washington Examiner — for promising that if elected, on day one of his presidency, he would grant Obamacare waivers to all 50 states.
As I reported, under the text of the law, the ability to offer waivers to states was subject to many restrictions and wouldn’t even be an option until 2017, four years after his hypothetical swearing in.
Though I still believe I was right about what the statute said, as it turns out, I was being old-fashioned by taking the letter of the law so literally.
Having watched President Obama and Secretary of Health and Human Services Kathleen Sebelius over the past several months unilaterally alter or outright ignore major portions of the law, I now believe that a future Republican president would have greater latitude to gut Obamacare than I once thought possible.
The changes instituted by the Obama administration in response to implementation snags have ranged from perfectly legal areas of administrative discretion stemming from the vast regulatory powers granted to the HHS secretary under Obamacare, to more creative interpretations of that discretion, to Obama simply choosing to ignore parts of the law that became inconvenient.
Obama has turned his signature legislative accomplishment into a constantly evolving wikilaw, with editing privileges restricted to himself and a few administration officials.
He’s largely been able to get away with it due to the difficulties posed by gaining standing in court for legal challenges.
As businesses barked about the requirement that they provide qualifying health insurance or pay a fine, Obama decided not enforce the law’s employer mandate in 2014, even though the law explicitly states that’s when it’s supposed to kick in.
As technological problems mounted, HHS delayed the implementation of some income verification requirements for those applying for federal health insurance subsidies, without delaying the subsidies.
When Big Labor griped about a “reinsurance fee” that would be imposed on some union health care plans, HHS simply redefined the universe of health plans subject to the fee so that it excluded unions — forcing others to provide the lost revenue.
In the face of a public backlash over millions of Americans having their health insurance policies cancelled despite the president’s repeated assurances that it wouldn’t happen, Obama announced that he simply wouldn’t enforce the requirements on insurance policies that are clearly spelled out in the law.
With insurers complaining that Obama's “administrative fix” to plan cancellations could pose unanticipated costs, HHS has now proposed altering a provision of Obamacare known as the “risk corridors” program to funnel more money to the industry.
In pursuing all of these desperate measures, Obama seems to have lost sight of the fact that Republican presidents have lawyers, too.
For instance, when a problem was created by the fact that the deadline for individuals to purchase insurance without being subject to the individual mandate penalty (Feb. 15) came earlier than the March 31 open enrollment deadline for the exchanges, HHS simply issued a “hardship exemption” to effectively delay the enforcement date of the mandate by six weeks.
This is one of many exemptions from the individual mandate that were added by HHS since 2010, and it's easy to see how a Republican administration could use the hardship loophole to get around enforcing the individual mandate if there aren't enough votes in Congress to formally repeal it.
A Republican president, through regulatory action and enforcement discretion, could also reduce the number of federal benefit mandates that are imposed on insurance policies.
If the administration wanted to go further, a Republican HHS secretary could potentially issue a revised Internal Revenue Service ruling eliminating health insurance subsidies on the federally run exchanges, in accordance with the actual text of Obamacare.
Though a lot will depend on how implementation goes over the next several years and what the politics of health care looks like in 2017, Obama has provided his potential Republican successor with a path to fight Obamacare through executive action.