This is more symbolic than substantive, but a natural start to the repeal process.
Sec. 2. To the maximum extent permitted by law, the Secretary of Health and Human Services (Secretary) and the heads of all other executive departments and agencies (agencies) with authorities and responsibilities under the Act shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.
The power for HHS to grant waivers was already built into the law, and was used — and used and used and used — by Obama’s administration in the early years of O-Care. The power to delay provisions of the law is more controversial. Remember when King Barack decreed in 2013 that he would delay enforcement of the employer mandate even though the law itself required the mandate to take effect on a specific date? Conservatives like me howled that the president has no constitutional power to delay implementation when a federal statute requires it, but O got away with it. And now turnabout is fair play. If King Barack enjoyed a particular type of authority, King Donald enjoys it too. Good work, liberals.
There’s another discretionary power under the law to lift the mandate that HHS already enjoys, namely, the power to grant “hardship” exemptions. In 2013, as ObamaCare took effect, millions of people had their health-care plans suddenly canceled because the terms didn’t comply with the many requirements of the new law. That was when Obama’s grand “if you like your plan, you can keep your plan” lie was exposed, and he took a beating for it politically. To add insult to injury, technically the people who’d lost their plans were in violation of the individual mandate and subject to a fine because they now lacked health insurance. To limit the political damage, Obama had HHS declare that anyone who’d had their plan yanked out from under them because of ObamaCare would be exempt from the mandate that year on grounds that they had suffered a “hardship.” As Ezra Klein put it at the time, “Obamacare itself is the hardship.” If Trump and Tom Price are eager to suspend the mandate, they could cook up some similar “hardship” logic — ObamaCare itself is a hardship — and use it to justify lifting the penalty for millions.
But they probably don’t want to do that yet:
“Potentially the biggest effect of this order could be widespread waivers from the individual mandate, which would likely create chaos in the individual insurance market,” said Larry Levitt, senior vice president at the Kaiser Family Foundation.
Yeah, canceling the mandate’s not something you want to do so long as insurers are still legally required to insure very sick people whose medical treatment will be fabulously expensive. The premiums they receive from healthy people who are required by the mandate to buy insurance are the revenue stream that makes it possible for them to pay for the sick. If those healthy people are suddenly exempt en masse from having to buy insurance on grounds of “hardship,” or the mandate is waived or “delayed” nationally while the GOP builds a replacement system, the revenue stream goes “poof” and you’ve got yourself an ObamaCare death spiral. That’s the core reason for repealing and replacing ObamaCare simultaneously, be it next month or on a delayed basis two years from now. As long as insurers are still forced to cover people with preexisting conditions — and Trump and the GOP want them to be under the new system — then you can’t take away the revenue mechanism. Tom Price knows that, which is why I say yesterday’s order was symbolic, not substantive. There’ll be no mass waivers of the mandate before it’s formally repealed and replaced.
An interesting tangential question via Gabe Malor, though:
I'm inclined to think it won't, since the mandate is still on the books and could be reimposed on a whim, but it's an unusual situation.
— Gabriel Malor (@gabrielmalor) January 21, 2017
Gabe’s referring to the fact that the contraception mandate under ObamaCare wasn’t specified in the law itself but rather was an interpretation of the law by Obama’s HHS department. If Obama’s HHS could unilaterally decree it, Trump’s HHS can unilaterally un-decree it. Last year, in the Little Sisters of the Poor case, the Supreme Court punted on the administration’s accommodation for employers who have a religious objection to covering the cost of birth control for employees, hoping that the parties could reach a compromise. Those cases are being worked out right now at the appellate level — but if Trump’s HHS suddenly cancels the contraception mandate, that may change. The cases might suddenly become moot and the issue of accommodation would remain unsettled. The question is, does it make sense for Team Trump to let the cases proceed on the theory that a Supreme Court with a new Trump-appointed conservative justice is likely to rule for the religious petitioners and settle the issue, which would bind future Democratic administrations? If the White House doesn’t want to have to defend the contraception mandate in court, it could refuse and let the Court appoint some third party who’ll defend it. Even if the religious petitioners lose and the Court finds that the Obama White House’s accommodation was acceptable, no problem — then Trump and Tom Price could eliminate the contraception mandate altogether. All the court ruling would mean is that a future Democratic president who wanted to bring back the contraception mandate could use Obama’s accommodation for religious employers as part of it.