It might take weeks to start unwinding ObamaCare, but Donald Trump wants a faster start than that. Mike Pence told House Republicans this morning. Following in the footsteps of his predecessor, Trump plans to sign executive orders on his first day in office aimed at unwinding ObamaCare. Pence told the caucus that the orders will “smooth” the transition while Congress works on the statutory repeal of the Affordable Care Act:
— Fox News (@FoxNews) January 4, 2017
NEWS: Trump will sign executive orders related to repealing Obamacare on Day 1, Mike Pence told GOP conference per Chris Collins
— Rachael Bade (@rachaelmbade) January 4, 2017
MORE: Pence discussed using executive orders to 'smooth' transition process from Obamacare – lawmaker
— Reuters Politics (@ReutersPolitics) January 4, 2017
In one sense, this will be another form of just desserts. Much of the ACA is built on executive action already; the law mostly provides a framework for regulation by the Secretary of Health and Human Services rather than actual statutes. Tom Price can undo the regulatory structure of ObamaCare once confirmed in that position, but Trump could issue an EO to stop enforcing regulations in the meantime, although those might need to be specifically targeted to be effective, which is why Pence spoke about them in the plural.
This underscores just how much of Barack Obama’s work was built on the sands of executive actions, even with a statutory framework as with ObamaCare. That should serve as a warning to the incoming administration about the need for only sparing use of this mechanism when really necessary, however — and that does not appear to be the case here. Once Price is installed at HHS, and he will be soon enough, then Price can unwind the regulations in an orderly fashion using the statutory authority granted him by the ACA itself. The next open enrollment is more than nine months out, and that gives Price plenty of time to act.
Why rush to issue EOs? Bloomberg describes the “glacial pace” that repeal will take in Congress:
Donald Trump promised voters an immediate repeal of Obamacare, but Republicans in Congress likely won’t have a bill ready for him on Day One. Or Day Two. Or perhaps even his first two weeks.
Republican leaders will start deploying fast-track procedures Wednesday to get the bill through the Senate, but that will require weeks of wrangling, if not longer. …
Given Democratic opposition, Republicans plan to use a special budget procedure known as reconciliation, which is not subject to a filibuster, in hopes of putting a bill repealing much of the health-care law on Trump’s desk as soon as possible after his Jan. 20 inauguration.
The process can get messy. It starts with passage of a budget resolution with instructions to committees in each chamber, which then draft reconciliation packages. Those packages are combined into a bill that must pass both chambers. If the two versions have differences, they must be settled and passed again.
True, but we’re still talking about February or early March as a timeframe at worst. One senses that the EOs will end up serving the same purpose as they did during Obama’s terms — the self-satisfaction of the man signing them. Trump should refrain from falling into that same trap. He has everything in place for repeal on a statutory and regulatory basis, and he should let it unfold in that manner.
So what will repeal look like? Newly elected Senator Bill Cassidy (R-LA) says the mandates and penalties will go, but the options for states to run their own exchanges may stay in place, among other more popular components:
“Really we have to, if you will, differentiate between Obamacare — the penalties, the mandates, you gotta do this or the federal government is coming after you — and the other things that were in the bill that were put in there because it was a vehicle,” Cassidy said during the debut of CBSN’s new daily political show “Red and Blue.” The daily political show will air at 9 p.m. ET week nights. …
“The Obamacare provisions — the penalties and the mandates — yes, let’s repeal those lock, stock and barrel,” he said. “The other stuff, I’m not sure people are as concerned about.”
Referring to Rep. Tom Price (R-Georgia), President-elect Donald Trump’s nominee for health and human services secretary, Cassidy said Price has said “different things” about the possibility of a full repeal of the law — and that there might be provisions of the law he is interested in keeping.
“There are parts of the law that I think he would retain, if only because it would allow repeal by states of other parts of the law,” he said. Cassidy specifically mentioned Sec. 1332 of the law, which allows states to create their own alternatives to the Obamacare exchanges if they so choose.
If Congress repeals ObamaCare, do states need a federal law allowing them to set up their exchanges? Minnesota had an online exchange for insurance well before ObamaCare passed, for instance, so that seems unnecessary. The problem with keeping components in place is that Congress will have to account for them in whatever replacement plan they later pass — and that could create even more headaches down the road.