The Supreme Court of the United States ruled in favor of keeping many of the important provisions described in the Affordable Care Act of 2010. ABC News reports within minutes of the ruling, Mitt Romney and many Republicans in Congress vowed to repeal the law. How hard would it be to repeal the measure? It depends on which branch of government is involved in the process in matters of constitutionally driven separation of powers.
How can a president repeal the law?
Legally, a president cannot repeal a law despite the verbiage being used by Romney. A president can, however, instruct members of the Cabinet to cease enforcing parts of the law. President Barack Obama used this tactic regarding the Defense of Marriage Act in 2011, according to ABC News. Obama also did the same thing regarding immigration laws earlier in June. If Romney becomes president, he can simply instruct Cabinet secretaries to restrict enforcing the law.
Louisiana Gov. Bobby Jindal is currently using this strategy for his state. The Ticket blog reports Jindal simply is refusing to set up an insurance exchange in his state.
How can a law be repealed if it is already passed?
A literal repeal, which has been suggested by many Republicans, requires Congress to pass an act repealing all sections of the law. For Romney to do that, he would need both chambers of Congress to agree on passing a new law to change the U.S. Code. The most likely way that would need to happen involves Republicans getting enough seats in the Senate to overcome a filibuster with 60 or more votes. Republicans would need to gain more than 10 seats in the Senate in November's general election for that to happen, in addition to Romney winning the presidency. The New York Times states GOP candidates vow to make the health care law an election-year issue to take back aspects of the federal government at the ballot box by electing more Republicans.
What tactics can Congress use?
If Congress is controlled by one party and there is a dissenting party in the White House, there are a few tactics legislators can use to get the president to comply. Congress can attach a bill as part of another larger bill the chief executive really wants passed. Without line-item veto authority, the president would have to sign the measure or veto the bill completely. It depends on how badly the president wants some parts of the law while disdaining the attached parts. Congress can also recommend a constitutional amendment, but the bill would also need presidential approval before states decide the measure.
How would Congress overcome a veto?
The strategy of repealing the law works if the legislative and executive branches agree to the bill. If Republicans control Congress but Obama is still in the White House, he could veto the bill. Then Congress needs two-thirds of each chamber to agree to an override.
What about limiting funding of the law?
Congress alone is responsible for funding measures for all federal programs as per Article 1, Section 8 of the U.S. Constitution. Congress can simply pass laws restricting funding and not collect taxes for the federal budget. Legislators would have to get the president to agree and sign laws. A more extreme tactic is to simply not pass any funding bills for the departments who need money to implement the Affordable Care Act.
William Browning is a research librarian specializing in U.S. politics. Born in St. Louis, Browning is active in local politics and served as a campaign volunteer for President Barack Obama and Missouri Sen. Claire McCaskill.