“FACT: Repealing Obamacare would be easier than repealing Prohibition.”
— Heritage Foundation in a tweet Dec. 5
If the whirlwind of news about the bumpy rollout of President Barack Obama’s signature health care law is making you dizzy, maybe it’s time to go for a drink. Maybe at a speakeasy?
We had this idea after a recent tweet by the Heritage Foundation, a conservative think tank that opposes the Affordable Care Act.
The tweet featured a black-and-white photograph of people celebrating the 21st Amendment, which made it legal to buy, sell, transport and drink alcohol. The caption was: “FACT: Repealing Obamacare would be easier than repealing Prohibition.”
It seems logical at first glance — after all, Prohibition was a constitutional amendment, while Obama’s health care law is “only” a law. But would it really be easier? Experts say the issue is more complicated than it looks.
Repealing Prohibition
First, let’s go back to 1917, when Congress passed the Volstead Act, a nationwide ban on the sale, production, importation and transportation of alcohol beverages. In 1919, the Volstead Act became the 18th Amendment to the Constitution.
During the “dry” period, lasting from 1920 to 1933, organized crime increased significantly. With public support flagging, the 18th Amendment was scuttled after only 13 years through ratification of the 21st Amendment.
The repeal — as do all repeals of constitutional amendments — required a two-thirds majority in both the House and the Senate, as well as approval by three-quarters of the states.
Repealing a constitutional amendment is always “a very difficult path,” said Burdett Loomis, a University of Kansas political scientist. “That said, it was a fairly simple piece of policy to reverse, all things considered.”
All told, it only took eight months to reach enough states — 36 — to — overturn Prohibition.
Repealing Obamacare
What about repealing Obamacare?
In theory, enacting or repealing a law, such as Obamacare, requires a simple majority in both the Senate and the House, followed by a presidential signature. That could happen pretty quickly if all parties were to agree. If both chambers of Congress agreed but the president vetoed the bill, then a two-thirds vote is required in both houses.
On the surface, then, “repeal of Obamacare appears to be easier than repeal of the 18th Amendment,” said Steven Smith, a congressional scholar at Washington University in St. Louis.
But repealing a law like Obamacare is hardly a piece of cake.
For starters, scholars we interviewed all stressed how complex Obamacare is. The Affordable Care Act has 2,074 pages, a fact Republicans regularly complain about.
By contrast, the 18th Amendment consists of only three paragraphs. The same goes for the 21st, which repealed it.
“The fact that the (Heritage Foundation) tweet is missing is that there are 10 titles to the ACA,” said Timothy Jost, a Washington and Lee University law professor. “It’s not only health care, it’s also Medicare, Medicaid, fraud and abuse laws, preventive care laws, etc.”
In addition, many provisions of Obamacare have already been enacted, such as the right of parents to add children up to 26 years old on their policies and an end to insurer rejections for pre-existing conditions for children.
“If all of those were repealed,” Jost said, “no one knows what would happen to the insured.”
There would also be a risk that any fraud or abuse cases currently prosecuted under the health care law would also have to be dismissed.
In addition, Medicare and Medicaid were modified and expanded as part of Obamacare, and the so-called doughnut hole for Medicare prescription drug coverage was closed. “If you repeal Obamacare and do nothing else, that would probably lead to a stop of all Medicaid payments,” Jost said.
Length of a possible repeal
So let’s say Congress and the president really wanted to go through with a repeal of the health care law. How long would that take?
“Responsible legislation repealing Obamacare would be quite long, many hundreds or thousands of times longer than the three sentences of the 21st Amendment” needed to repeal Prohibition, Smith said.
Then there’s a whole separate problem: Many states have changed their laws according to the federal health care law, so each of those state laws would have to be repealed and rewritten as well.
If you include all these factors, Smith said, “the repeal of Obamacare legislation would be much more difficult to write than the 21st Amendment.”
When we ran these critiques by the Heritage Foundation, Hans von Spakovsky, a senior legal fellow at the think tank, said he disagreed.
“The claim that ‘responsible legislation repealing Obamacare would be quite long’ is ridiculous,” von Spakovsky said.
He said it would only take a one-paragraph bill to repeal the health care law.
“The word ‘responsible’ is the key word that other so-called experts use to dispute this,” von Spakovsky said. “They clearly believe that parts of Obamacare should be preserved.”
Our ruling
The Heritage Foundation tweeted that it would be easier to repeal Obamacare than it was to repeal Prohibition.
It’s correct that, on paper, it’s procedurally easier to repeal a law than a constitutional amendment. Obamacare, however, is a much more complicated piece of legislation than Prohibition was, meaning it would likely be far more complicated to eliminate all vestiges of the law.
The Heritage tweet oversimplifies the debate. The statement is partially accurate but leaves out important details. We rate it Half True.
