The efforts to repeal Obamacare have taken many forms. The primary effort has been in the U.S. Congress, where the House of Representatives has passed a bill to repeal Obamacare that received more votes than the original legislation enacting Obamacare. However, the effort has stalled in the Democrat-controlled Senate. Furthermore, President Obama has indicated that he would veto any repeal legislation. For this effort to succeed, repeal-supporting Republicans must take the Senate and Presidency in 2012 and maintain control of the House. This will not be an easy task. World events, economic considerations, and candidate missteps all could affect the 2012 elections in unpredictable ways.
Another significant effort to repeal Obamacare is being made in the courts. A Florida Federal Court recently ruled that the Obamacare mandate requiring people to purchase health insurance from private companies is unconstitutional. The court went on to declare the rest of Obamacare invalid since the mandate is a key structural feature of Obamacare and the bill contained no “severability clause” (a clause stating if one portion of the law is declared invalid, the rest of the law should still stay in effect). However, other Federal Court rulings declared the mandate provision of Obamacare constitutional. The cases will eventually get to the Supreme Court, where the outcome is far from predictable.
There is another way to repeal Obamacare; a way that does not require the approval of Congress or the Supreme Court. It is to use the state-led constitutional amendment process under article V of the U.S. Constitution to pass a constitutional amendment that directly repeals Obamacare. The amendment would be clear and brief:
Amendment 28 – Repeal of Public Law No. 111-148.
Public Law No. 111-148, The Patient Protection and Affordable Care Act, and any amendments thereto, are repealed.
Essentially “Obamacare is repealed.” Such an amendment would not be unprecedented. In 1933, state legislatures ratified the 21st Amendment that states, in part, “The eighteenth article of amendment to the Constitution of the United States is hereby repealed,” and thus repealed the prohibition of alcohol. As the supreme law of the land, a constitutional amendment repealing Obamacare would be equally unassailable.
A direct constitutional repeal of Obamacare would be like a scalpel, excising only the offending legislation, while leaving the rest of the Constitution and federal structure untouched. As such, the amendment would be impervious to arguments warning of unintended consequences or of disturbing the current balance of power between the states and the federal government. Indeed, supporters of the direct constitutional repeal of Obamacare can argue that the founders included the state-led Article V amendment process for exactly this type of situation: where a congress acts in clear opposition to the will of the majority of the people.