Commentary Magazine


Topic: Center for Legal & Judicial Studies

Could We Get Rid of It?

Reader Renee asks me whether ObamaCare can be repealed if signed into law. The short answer is yes. First off, if they utilize the ” deem and pass” Slaughter Rule, there will be court challenges. And those states that pass prohibitions on the requirement for citizens to buy insurance will challenge the law as well. There will also be other legal challenges. But really, all it would take is a new law.

But what about those “you can’t repeal this” provisions and “supermajority requirements” snuck into the nooks and crannies of ObamaCare? They really are meaningless. Robert Alt, senior legal fellow and deputy director of the Center for Legal & Judicial Studies of the Heritage Foundation, confirms the adage that “One Congress cannot bind a future Congress.” He explains:

The only question is whether the new statute itself meets the requirements of bicameralism and presentment (ahh, something that until recently we have rather taken for granted). If it does, then it must be given effect unless it is unconstitutional — and there is nothing unconstitutional about repealing a prior bill. While the courts will give the prior statute’s language its maximum effect, the new statute would be just as much the “law of the land,” and thus a statement in the new statute that “notwithstanding the supermajority or ‘no repeal’ requirement in the health care bill, HR XXXX is hereby repealed” would have to be given effect by the courts.

Now what’s needed for that is a new Congress willing to repeal a prior Congress’s handiwork and a president willing to sign the repeal. (Or a congressional majority so large as to override a presidential veto.)  That, as Obama keeps telling us, is what elections are for.

Reader Renee asks me whether ObamaCare can be repealed if signed into law. The short answer is yes. First off, if they utilize the ” deem and pass” Slaughter Rule, there will be court challenges. And those states that pass prohibitions on the requirement for citizens to buy insurance will challenge the law as well. There will also be other legal challenges. But really, all it would take is a new law.

But what about those “you can’t repeal this” provisions and “supermajority requirements” snuck into the nooks and crannies of ObamaCare? They really are meaningless. Robert Alt, senior legal fellow and deputy director of the Center for Legal & Judicial Studies of the Heritage Foundation, confirms the adage that “One Congress cannot bind a future Congress.” He explains:

The only question is whether the new statute itself meets the requirements of bicameralism and presentment (ahh, something that until recently we have rather taken for granted). If it does, then it must be given effect unless it is unconstitutional — and there is nothing unconstitutional about repealing a prior bill. While the courts will give the prior statute’s language its maximum effect, the new statute would be just as much the “law of the land,” and thus a statement in the new statute that “notwithstanding the supermajority or ‘no repeal’ requirement in the health care bill, HR XXXX is hereby repealed” would have to be given effect by the courts.

Now what’s needed for that is a new Congress willing to repeal a prior Congress’s handiwork and a president willing to sign the repeal. (Or a congressional majority so large as to override a presidential veto.)  That, as Obama keeps telling us, is what elections are for.

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