Day One: Trump Issues Executive Order Granting Modest Relief From Obamacare

During the 2016 campaign, Donald Trump promised to begin repealing and replacing the Affordable Care Act on Day One of his presidency. Within hours of his inauguration, he put a small down payment on that promise, issuing an executive order instructing federal agencies to "take all actions consistent with law to minimize" the law's economic burdens.

Regulations are a critical component of Obamacare

First, some background. According to the U.S. Constitution, it's the role of Congress to pass laws, and for the President to enforce them: to "take care that the laws be faithfully executed." But laws that Congress passes, called statutes, often require the President and his deputies to issue additional laws, called regulations, to flesh out their details.

People often note the fact that the law we call the Affordable Care Act was 2,000 pages (the statute). But the regulations needed to implement the ACA exceed 20,000 pages. Many of those regulations can't be unwound at the stroke of a pen, because many of them are mandated by the ACA statute passed by Congress.

For example, the Obamacare statute requires health insurers in the individual market to charge young people no less than one-third what they charge old people, even though old people cost six times as much to cover. You need regulations from the U.S. Department of Health and Human Services to define exactly how to implement that. There isn't much room to meaningfully revise those regulations in a way that's "consistent with law."

Reforming 'essential health benefits'

On the margins, the Trump action could lighten the impact of Obamacare's "essential health benefits." Section 1302 of the Affordable Care Act mandates that all health insurance plans sold to people who buy coverage on their own cover ten categories of health care services, including physician services, emergency services, hospitalization, maternity and newborn care, mental health, prescription drugs, rehabilitative services, lab tests, preventive care, and pediatric services.

But it's up to the Secretary of Health and Human Services to fill in the blanks: what exactly constitutes mental health services? How do you define preventive care? The Trump administration has some flexibility—but not a ton—to define those terms more narrowly. That could provide some modest relief to those facing stiff premium spikes under Obamacare.

Modest is the key word. According to actuaries at insurers who've tried to sell Obamacare-based products, the law's mandate that plans offer maternity coverage to everyone—even men and women past childbearing age—has been a key driver of the law's massive premium hikes. That can't be changed via executive order, though it could be narrowed down.

Declining to enforce the individual mandate?

My colleague Seth Chandler is excited by the possibility that Trump can "severely damage" Obamacare by refusing to enforce its individual mandate. (Rooting for Republicans to "severely damage" the law seems to miss the broader goal here, which is a freer and more affordable health care system.)

Seth cites as justification the fact that in 2013, the Obama administration did the same thing as a way to goose the enrollment figures in Obamacare's first year of operation. But at the time, conservatives objected that Obama was flouting his constitutional duty to faithfully execute the laws; why should 2017 be different?

One could argue that the individual mandate is a special case because conservatives continue to believe the mandate is unconstitutional and that the President shouldn't have to defer to the Supreme Court, a co-equal branch of government.

But even so, Republicans control Congress and the White House. If they don't like the individual mandate, they should repeal it the old-fashioned way: by passing laws.

The hard work is yet to be done

Regardless of the individual mandate, there's only so much you can do through executive orders to change Obamacare. To fully repeal and replace the former President's health law, Congress will need to pass new laws that can overcome a filibuster in the Senate. That will be harder than it looks.

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NOTE: The full text of the executive order is below:








Sec. 6. (a) Nothing in this order shall be construed to impair or otherwise affect:







January 20, 2017.



