The Power to Block the Affordable Care Act: What Are the Limits?
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.
Kraemer, John D. and Gostin, Lawrence O., "The Power to Block the Affordable Care Act: What Are the Limits?" (2012). O'Neill Institute Papers. Paper 46.