Saturday, April 2, 2011

Investors Business Daily - Romney's Mistake: ObamaCare Is Not 'Waivable'

The author makes a good point. How do you undo a massive entitlement program with an executive order? Would that even be legal?
Mitt Romney may have waived goodbye to the GOP nomination with his assertion that he could start unraveling ObamaCare by issuing an executive order as soon as he moved into the White House.

"If I were president," Romney wrote on the website of the conservative magazine National Review, "on Day One I would issue an executive order paving the way for ObamaCare waivers to all 50 states."

Simply put, executive orders cannot contradict statutory law. Waivers are not a solution and might well detract from the ultimate goal of repealing ObamaCare and replacing it with a truly free market alternative that puts patients — not bureaucrats — in charge of their health care.

He continued: "The executive order would direct the secretary of Health and Human Services and all relevant federal officials to return the maximum possible authority to the states to innovate and design health care solutions that work best for them."

As a magna cum laude graduate of Harvard Business School and as the Republican governor who convinced the Democratic Massachusetts legislature to pass RomneyCare, he surely knows a president can't use an executive order to wipe out two massive new entitlement programs, $550 billion in new and higher taxes, vast Medicaid expansion, and mandates on individuals, businesses and the states to comply with President Obama's Patient Protection and Affordable Care Act.

Read the entire article HERE


Anonymous said...

Big find, RW.

This woman has been after Romney for a long time. She repeats the same old dis-proven 'facts' about MassCare all the time.

I think maybe she needs to go over to Poor lady!


Anonymous said...

I meant -Martha

Right Wingnut said...

Martha, She asks a good question. Is it realistic and to suggest an executive order to overturn statutory law? Is it even legal?

Machtyn said...

He wants to issue an executive order to allow all 50 states waivers against ObamaCare. He's not wanting to issue an executive order to repeal ObamaCare.

In my opinion, this shows how highly inefficient government can be. A law is passed, another law is passed to correct the first law, and on and on.

Right Wingnut said...


"There can be no liberty where the legislative and executive powers are united in the same person."
--Charles-Louis de Secondat, Baron de Montesquieu1

"The accumulation of all power, legislative, executive, and judiciary in the same hands...may justly be pronounced the very definition of tyranny."
--James Madison, Federalist 46

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
--U.S. Constitution, Art. I, § 1

"The executive power shall be vested in a President of the United States of America."
--U.S. Constitution, Art. II, § 1, cl. 1

Right Wingnut said...

...the constitutional separation of powers cuts the other way if the President attempts to issue an order regarding a matter that is expressly committed to another branch of government; it might even render the presidential action void....

Noelle said...

The article misrepresents what Romney suggested doing. Romney stated that his executive order would allow all 50 states to receive waivers. It would not repeal the legislation. That would take a lot longer, but the executive order granting waivers would both allow States to pursue their own solutions, and give Congress the time to create and pass legislation overturning the health care law.

Right Wingnut said...

Noelle, But is it legal to do so?

When Obama signed an executive order prohibiting federal funding of abortion in ObamaCare, everyone knew it wasn't worth the paper it was written on. How is his different?

Noelle said...

I am not an expert in the law, so I can't speak to its legality. That's a question you will have to direct to someone more knowledgeable. But I will say this, there is a big difference between Obama's executive order prohibiting the federal funding of abortion and Romney's potential executive order granting waivers.

Obama's executive order can be overturned by another president. It is only good as long as Obama chooses for it to be so, and he won't be president forever. Romney's potential executive order is not intended to be permanent, but rather to be a first step in overturning Obama's health care legislation. The actual repeal will take time, and this executive order will prevent the legislation for having its full potential power while the Congress is working on overturning the legislation. The permanent solution is repeal. The executive order is the first step.

I hope you followed my thought process. I get rambling sometimes.

Anonymous said...

RW, he said 'maximum possible authority'. That should answer your question.


BOSMAN said...

Romney made it CLEAR that a waiver was a TEMPORARY measure while Obamacare was in the process of being repealed.

He wants INDIVIDUAL STATES to determine what they want to do.

His statement was clear and doesn't require rocket science to understand.

marK said...

I am reminded of an episode in the life of Abraham Lincoln. A woman came to him to plead for her son's life. He had been caught sleeping on duty and was sentenced to be shot.

Lincoln listened to her and then gave his secretary orders to telegraph the son's commanding officer the instructions that he was not to execute the boy until further notice from him.

The mother was still upset and bemoaned that Lincoln had only delayed the execution until further notice. Lincoln replied with a twinkle in his eye, "Madam, if your son isn't going to die until further notice from me, he is going to live considerably longer than Methuselah."

Right Wingnut said...


I understood what his statement said perfectly. The clarity is not what's being called into question here. The author is of the opinion that an executive order cannot contradict statutory law. While it may sound like a good idea on the surface, perhaps it's futile to try to undo one unconstitutional act with another.


Cute story, but it still doesn't answer the question of legality.

Virginia Brown said...

Since the Obama administration has already granted over 1000 waivers of the healthcare law, perhaps you should be questioning the legality of what HE has done. Whether or not it is a viable solution, Obama has no grounds to dispute it. And, as has been stated previously, it would only be a temporary solution until the law could be repealed by the legislature.

DanL said...

RW, I loathe executive orders of any kind. If I were a Supreme Court Justice, I would rule them unconstitutional. However. I am not sure, but I believe that the case law from the Supreme Court is that EO's are constitutional. Good question, though, about whether it would be legal for Romney to issue an EO to overturn legislation passed by Congress. If his EO were viewed by the Court as an attempt to repeal a portion of a piece of legislation, I suspect that there would be five judges who would rule it unconstitutional.

hamaca said...

It's certainly a fair question. I would have thought Romney would get some input from constitutional lawyers/scholars before making the pronouncement.

I'm not the one to clear it up--just more questions. For example, would that specific executive order be anything more than just giving the go-ahead to the rest of the states to do what Virginia is doing--if they choose to do so?

marK said...


Have you guys not been paying attention? ObamaCare is written where various entities can be given waivers where they don't have to comply with the law. The number of waivers granted so far is now considerably above 1000.

It is a big scandal. The law is supposed to apply to everyone, but what is happening is politically connected groups are being granted exemptions from it. That is how the law was written.

So what Mitt is essentially doing is threatening to use ObamaCare against itself by allowing all 50 states in the union to have a waiver whereby they don't have to follow the law.

Right Wingnut said...

Mark, You could be right. However, the author of this article has dedicated her life to analyzing health care policy. I'm still not convinced that states can be granted waivers via executive order. I'd love to be proven wrong, even though it wouldn't necessarily benefit me (Minnesota - Gov. Mark Dayton).

Grace-Marie Turner's website:

Right Wingnut said...

Well, I stand corrected. There ARE provisions for state waivers. There are reportedly 6 different types of ObamaCare waivers.

*MLR waiver for mini-med health insurance plans
*Annual limit waiver
*MLR waiver for States
*State innovation waiver
*ACO anti-trust waivers
*Individual mandate waivers

The type of waiver Mitt is talking about, is the "State Innovation Waiver." GOOD LUCK complying with the requirements.

State innovation waiver
South Carolina Governor-elect Nikki Haley commented on her discussion with President Obama at a recent meeting he had with newly elected governors:

“I respectfully asked him to consider repealing the bill,” she said, to which he clearly stated he would not. “I pushed him further and said if that's the case, because of states’ rights, would you at least consider South Carolina opting out of the program?”

Obama told her he would consider letting South Carolina opt out, she said, if the state could find its own solution that included a state exchange, preventing companies from bumping people for preexisting conditions and allowing insurance pooling.

“I think it’s something we go back to South Carolina and start crunching," she said. "This is not about expecting what's given. This is about saying we're going to fight this every step of the way and use every option possible.”9
Was Obama offering to exempt South Carolina by virtue of his own judgment and magnanimity? Hardly. Obama was offering no more than what Obamacare already offers. Namely, a “Waiver for State innovation” from section 1332 of Obamacare.

But this waiver is not as helpful as Governor-elect Haley might hope. What President Obama did not tell her is that South Carolina would also be required to:

•“provide coverage at least as comprehensive” as Obamacare;
•“provide coverage and cost sharing protections against excessive out-of-pocket spending that are at least as affordable” as Obamacare; and
•“provide coverage to at least a comparable number of its residents as” Obamacare.

Benjamin Domenech, in his December 1, 2010 op-ed says, “If this seems like a silly Catch-22 for states, it is. The only policies that could meet this waiver requirement are single-payer constructs — which many other nations are moving away from, having tried them and seen them fail.”

The six different types of waivers are discussed here:

By the way, I read Section 1332 in the actual bill. The information above is accurate. Defunding and a full repeal is the only option. This legislation is a disaster.

Right Wingnut said...

So, based on the above information, I conclude that Mitt's Executive Order strategy is a farce. Sorry.

Right Wingnut said...

In addition, States can't apply for the State Innovation Waiver until January,1, 2017. The following link takes you to the text of the legislation. Section 1332(State Innovation Waiver) begins toward the bottom of page 85. There is no way individual states could comply with the onerous requirements of this provision. Moreover, this section would have to be overturned by the courts, or repealed by both houses of congress and signed in law by the president before Romney could issue his executive order. I would like to know more about what his executive order would say. Perhaps he will be kind enough to show us a rough draft?

J said...
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J said...
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J said...

Actually, if Mitt Romney does become the next President of the United States, he can issue an executive order and that it would be within his Presidential power, as head of the executive branch, to do so:

To see why, go here: