Executive Order On Unwinding Obamacare Largely Symbolic

In one of his first official actions as President, Donald Trump signed an Executive Order “minimizing the economic burden of the [ACA] pending repeal.” It is a symbolic act, with its directives couched in terms like “to the maximum extent permitted by law,” but it is a clear statement that Trump does not intend to wait for congressional action in order to begin to move on one of his signature campaign promises. It is a signal to all relevant agencies to begin the “slow walk” — grudging compliance with the law as written — pending the planned repeal and replacement of the ACA.

Many laws are not enforced exactly as written. It is not unusual for the effective date of a complex requirement to pass without enforcement efforts getting underway. The ACA has been no exception. Certain deadlines under the law were extended by the Obama administration in order to help folks ease into compliance with the ACA; and surely some will now be extended by the Trump administration in order to help folks ease out of compliance.

An open question is whether the President wants the agencies to begin the “slow walk” now, or if he would consider that to be premature, since full repeal and replacement of the ACA is not yet on the legislative calendar. We do not have a clear read on that at present.

Could the House v. Burwell appeal be dropped? Could the definition of the hardship exemption from the individual mandate be expanded to the point where the mandate would never, or virtually never, be enforced with respect to an individual? Could enforcement of the employer mandate be walked back administratively? Could the review of Medicaid waivers under the ACA be undertaken from a new perspective? Could cross-border insurance products be developed and brought to market, as specifically encouraged by the Executive Order?

The answer to all of these questions is “yes.” There is a lot of room for interpretation, yet the guts of the changes to be made to deliver on the repeal and replace pledge will require legislative action and rulemaking, neither of which is likely to be completed overnight.

Challenges await: Just as the GOP has brought lawsuits challenging implementation of the ACA, lawsuits brought by the Democrats should be expected with respect to GOP enforcement of current law, and interpretation and implementation of future legislation. In addition, we still do not have a full picture of the replacement proposal, which may be some sort of combination of the Ryan, Trump and Price proposals.

In sum, signing the Executive Order appears designed largely to signal that Trump is making good on his pledge, or at least beginning to make good on his pledge, so that once new agency heads have been confirmed they can begin the nitty-gritty planning for further implementation of changes to health care policy, consistent with the new administration’s agenda.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting