Arkansas Republicans may succeed in blocking the Medicaid expansion in Arkansas under a provision of the Affordable Care Act, but the broader law is almost certainly here to stay regardless of what happens on Nov. 6. In the first place, and most obviously, a Romney victory without Republicans taking control of the Senate—which looks increasingly unlikely based on polling — takes "repeal and replace" and much of the broader Republican agenda off the table, as Talking Points Memo explains.
Without a Senate majority, Republicans can’t control the budget process. Which means they can’t cram their entire agenda into a reconciliation bill that’s immune from the filibuster. It means that even if they force votes on repealing the Affordable Care Act, they’ll need 60 votes — or about a dozen Democratic defectors. Not likely. President Romney would have to stymie implementation of the law from within the executive branch — a difficult task — and his tax agenda would be a non-starter. So would his plans for Medicare and Medicaid. He’d still be able to appoint Supreme Court justices and lower court judges, but Democrats would be able to block conservatives they deemed too objectionable.
Even if Romney and Senate Republicans overcome poll deficits, it would still be incredibly difficult to dismantle the law. As NPR's excellent health reporter, Julie Rovner, explained yesterday, Romney's promise to immediately grant waivers to states to opt out of the law would be halted by courts. Reconciliation takes forever and, crucially, parts of the law such as requiring insurers to accept patients with preexisting conditions would almost certainly require the same 60 votes from the Senate that were required to pass the law to undo it.
"There are waivers under the law, but not an across-the-board waiver," said Tom Miller, a lawyer with the conservative American Enterprise Institute. For the record, Miller is an avid opponent of the health law. But he's also a veteran of Capitol Hill and knows what can and can't happen.
"You can try anything under the law," he said. But in many cases, "a federal court will usually step in and say, 'You've gone a little bit too far.' "
In this case, the part of the law that allows the president to grant states waivers doesn't actually kick in until 2017. And even the waivers that are allowed require states to cover as many uninsured people as would be covered by the Affordable Care Act."