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Romney and Obamacare waivers

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Politics,Beltway Confidential,Philip Klein

Throughout the campaign, Mitt Romney has promised to issue all 50 states an Obamacare waiver on the first day of his presidency. But in a meeting with the Washington Examiner’s editorial board this morning, Romney conceded that such a waiver could be tied up in lawsuits for months. He also expressed confusion about what part of the health care law his waiver would be based on, and eventually referred the question to his lawyer.

The pledge to issue a “day one” executive order has been a cornerstone of Romney’s efforts to overcome conservative opposition to his Massachusetts health care record. He’s typically employed the waiver promise to claim he could put Obamacare on hold while pursuing full repeal with Congress. For instance, in an October debate, Romney said, “as president, I will repeal Obamacare, I'll grant a waiver on day one to get that started.”

But as I reported last week, under the language of the health care law, the waivers are subject to a lot of restrictions – and don’t kick in until January 1, 2017. Given this, I asked Romney, “what immediate and specific relief would your executive order provide for individuals and businesses, assuming it’s issued on January 20, 2013?”

Here’s the exchange that ensued:

ROMNEY: Well, I will certainly pursue repeal, and that’s something which will occur if we have a Republican House and a Republican Senate, my guess is it could be done pretty close to day one. If that’s not the case, and I have to go through the waiver process, we will do our best. Our lawyers think that providing a state a waiver that we will be able to conform with the law and that the state would be able to opt out of the system, but if a lawsuit ensues, and it takes months to sort it out, well during that time hopefully we will have the bill repealed. I think people recognize that if I’m elected President of the United States, that we are not going to have Obamacare with its full panoply of benefits and costs. The American people don’t want it. I don’t want it. And we’ll repeal it. And if the waiver process is able to successfully stop it in its tracks, as we think it will, great. It doesn’t stop everything of course. Some elements go on. The tax being collected and so forth, that you can’t get out of that by waiver – it requires the ultimate repeal.

KLEIN: But what do your lawyers think as to why these waivers could take place, because I have the law here, and it says that it applies on January 1, 2017 – under the “waiver for state innovation.”

ROMNEY: When you say “it” -- “it applies”?

KLEIN: The “waiver for state innovation” -- under section 1332.

ROMNEY: The waiver for state innovation?

KLEIN: Yes, that’s the waiver that I believe that you’re talking about when you talk about state waivers. That’s what your campaign has said

ROMNEY: Oh, they say it’s that in particular?

KLEIN: Yeah.

ROMNEY: Then I’d have to have Ben Ginsberg, our lawyer, sit down. If you really want to go into that and tell you what -- if that’s important to you, we’ll have Ben Ginsberg give you a call and talk about what provision of the law we would seek to employ.

Full transcript, with audio, here.

Later in the day, I spoke to a Romney aide about the issue in more detail.

To start, the aide confirmed that Section 1332 relating to the “state innovation waiver” was indeed the portion of the law that the campaign was relying on. The aide emphasized that the U.S. Supreme Court could overturn all or parts of the health care law by the time Romney would take office. If not, many regulatory aspects of Obamacare are likely to be delayed through lawsuits and other roadblocks, as has already been the case with some provisions of the law. The aide also noted that Sens. Scott Brown, R-Mass., and Ron Wyden, D-Ore., have already sponsored a bill –that Obama says he supports – that would move up the effective date of the state waivers to 2014. Under the worst case scenario in which none of this happens, the aide said, if Romney issued the executive order, it would provide more certainty to individuals, businesses and states that they would be free of the Obamacare burdens in 2017.

However, the way the health care law was written, the waivers are subject to a number of restrictions. States themselves would have to apply for waivers to the Secretary of Health and Human Services. Those states would have to present “a comprehensive description of the State legislation and program to implement a plan meeting the requirements for a waiver…” But what if liberal states that favor Obamacare don’t request a waiver? And what if other states don't pass actual legislation or come up with a program, as defined by the law? The Romney aide pushed back, telling me that states would apply for waivers because they would want maximum flexibility.

The health care law also says that to be issued a waiver, any state would have to meet requirements, such as that its alternative health care proposal covers as many people as Obamacare otherwise would have in the state and that the coverage is just as comprehensive. But the Romney aide said that under the campaign’s interpretation of the law, the administration would be able to give broad leeway to states, allowing them to opt out of many onerous provisions of Obamacare, including the individual mandate. And, the aide said, there was wiggle room around how the various coverage requirements are defined.

Last week, a Congressional Research Service report found that the president’s power to undo Obamacare through executive order was very limited, because Supreme Court precedent has found that the president cannot take action that would conflict with the will of the U.S. Congress. Until it’s repealed, that would include Obamacare. But the Romney aide said that this argument wasn’t relevant to the waiver discussion, because a Romney administration would be following the law by issuing the waivers. If the waivers don’t give states genuine flexibility, the aide argued, then it means that the provision of the law has no teeth to it.

The problem with this analysis is that based on the way the law was written, the waivers do have all the trappings of a cynical move by Democrats to create the appearance that they were giving states more flexibility while piling on so many restrictions that they really wouldn’t allow states to deviate very far from the Obamacare approach.

Even if we’re being charitable to the Romney campaign, the best we can say is that waiver power is debatable. And even Romney himself now acknowledges that lawsuits challenging the waivers may not be resolved for months. Which really undercuts the initial point of making the waiver pledge --  that it would get repeal started and provide some sort of quick relief from Obamacare as full repeal works its way through Congress.

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