Constitution Check: Does a president have the power to repeal a federal law?

Constitution Check: Fact-checking the news Lyle Denniston looks at how Mitt Romney could try to overturn the Affordable Care Act if he were president – a task that could be very difficult.

The statement at issue:

“If our goal is jobs, we have to stop spending over a trillion dollars more than we take in every year.  So to do that, I’m going to eliminate every non-essential, expensive program I can find. That includes Obamacare…”

– Republican president candidate Mitt Romney, in a speech July 11 to the convention of the NAACP in Houston, as reported in various news accounts.

We checked the Constitution, and…

The President of the United States has awesome power, but the Constitution does not give the occupant of that office the authority to “eliminate” a law that has been passed by Congress, whatever the voters may think of that law.  It is a fairly common rhetorical flourish for presidential candidates to say something like “when elected, I will repeal” a law.  But they can’t.

The process for repealing a law has to begin in Congress.  Last week, the House of Representatives made a start on eliminating the new Affordable Care Act, from end to end. By a roll-call vote of 244 to 185, the House passed H.R. 6079, to wipe out the law as of March 23, 2010, the day it was signed by President Obama.  In the words of the bill, the law would be eliminated “as if such Act had not been enacted.”

Not only would that measure erase some 2,700 pages from the federal statute books, it would also erase more than 13,000 pages of federal regulations written by government agencies to carry it out.

Will that happen?  The chances are, at best, remote.  Here is what probably has to happen for H.R. 6079, or a similar measure in the future, to become a law:

First, the Republicans must retain control of the House in the November election, with at least  218 seats (a majority of the 435 if a vote on repeal is cast along strict political party lines).

Second, the Republicans must take control of the Senate away from the Democrats in November.  They must wind up with control of close to 60 seats in the new Senate and, to be really confident of succeeding, they must win 60 or more.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Third, even if both of those things occur, a repeal bill would have to overcome a certain veto by President Obama – if he has been reelected in November.

Fourth, even if the president loses to the Republicans’ Mitt Romney, a repeal bill almost certainly would face a Democratic filibuster in the Senate, and that is why the GOP would need close to, if not actually, 60 seats in that chamber.

Assume, then, that the Affordable Care Act survives a repeal effort in Congress.  So far, the House of Representatives has voted 33 times to overturn all or part of that law, and none of those measures has become law, so it has a good chance of surviving.

Would a President Romney be able to do anything to keep the law from going into full effect at the beginning of 2014, as it is presently scheduled to do?   He would have a number of options, and each would presumably be constitutional.

He could order the Internal Revenue Service to stop enforcing the penalty that the ACA will impose on those who fail to obtain health insurance policies by 2014.  That insurance-purchase mandate is the heart of the ACA, and the entire law might be in some jeopardy if that provision were to become a virtual dead letter.  The Supreme Court last Monday ruled that the penalty is, in legal terms, a tax, and the President would be in a position to direct IRS not to use the few tools of enforcement that are available in the ACA.

Because the penalty is now designated as a tax, Congress could simply repeal it using a somewhat complex procedure known as “reconciliation.”  Under that procedure, a bill cannot be filibustered in the Senate, so it would require only a majority vote to pass that chamber.  As a matter of fact, Congress used this procedure – after the initial passage of the ACA – to make some changes in it without encountering a filibuster.

Moreover, the White House could order the federal Health & Human Services Department to slow down, or perhaps abandon, the massive project of writing new regulations to implement the health care law.

In addition, a President Romney could work together with opponents of the ACA in Congress to deny federal funding for some or all parts of the ACA.  Such efforts, though, might face a Senate filibuster.

Perhaps most importantly, a new President would be able to use the “bully pulpit” that is the White House to build up public support for overturning the ACA, or at least to cut back on its major provisions.   Already, a number of Republican governors who are opposed to the ACA have announced that their states will “opt out” of the new law’s broad expansion of the Medicaid program of health care coverage for the poor.

In a real sense, then, the fate of the health care law may be said to ride on the outcome of the November elections, for the White House and for Congress.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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