Many commentators on the left predict that Mitt Romney, if elected President, could not repeal the Affordable Care Act. And that’s true as far as it goes, I suppose, not all of it could get shoehorned into a reconciliation bill; and a tight-knit group of 41 Democrats in the Senate could, under current rules, block any vote under regular order. However, I think a look at this story from Motoko Rich today, in a different context, shows how Presidents can use the power of the office to gut laws that they don’t like that were passed by a predecessor, for one reason or another.
In just five months, the Obama administration has freed schools in more than half the nation from central provisions of the No Child Left Behind education law, raising the question of whether the decade-old federal program has been essentially nullified.
On Friday, the Department of Education plans to announce that it has granted waivers releasing two more states, Washington and Wisconsin, from some of the most onerous conditions of the signature Bush-era legislation. With this latest round, 26 states are now relieved from meeting the lofty — and controversial — goal of making all students proficient in reading and mathematics by 2014. Additional waivers are pending in 10 states and the District of Columbia.
“The more waivers there are, the less there really is a law, right?” said Andy Porter, dean of the University of Pennsylvania’s Graduate School of Education.
The federal mandates in No Child Left Behind set an impossibly high standard that would have necessitated the dismantling of large numbers of school districts. As Congress was unwilling to act toward reauthorization in loosening those mandates, the Administration would tell you that they had to do something. And as a candidate, Obama was never completely partial to NCLB, though he has used the power of federal dollars rather than mandates to reshape national education policy. In fact, in granting the waivers, the Administration is forcing states to set additional college prep standards and use test scores in part in the evaluation of teachers. So they’re using the mandate process – in this case the waivers to get out of it – to meet its own education goals.
What’s exactly to stop Mitt Romney from doing this? In fact, he has said he would hand out waivers to states to opt out of the Affordable Care Act. This is easier said than done, but I don’t think one should underestimate the possibilities for executive orders and administrative rules from federal agencies to transform statutes. And if Romney wins, he can credibly claim that voters sent him to Washington to accomplish just that kind of undermining of Obamacare.
This is yet another case of the Presidency being more powerful than some commentators on the left give it credit for. Make no mistake, if a President Romney wants to rid the nation of the Affordable Care Act, he’ll find a way.