Price: You'd better believe Phase 2 is still on

With Phase 1 of the Republican three-step plan to repeal ObamaCare either dead or on hold, where does that leave Tom Price? The new Secretary of Health and Human Services got grilled yesterday about Phase 2, the regulatory follow-up on repeal of the mandates and taxes within the ACA. Without that repeal, Price told a House panel, he’ll enforce the letter of the law on ObamaCare. And that may be exactly what Democrats fear:

In his carefully calibrated testimony before House appropriators, Health and Human Services Secretary Tom Price made one thing clear Wednesday: The administration is still intent on dismantling parts of the Affordable Care Act even if Republicans lack the votes to rewrite it.

Time and time again, Price invoked the pledge he has made repeatedly to lawmakers since President Trump selected him for his post. “What we’re committed to is making sure the American people have access to affordable coverage,” he told Rep. Rosa L. DeLauro (Conn.), the top Democrat on the Appropriations subcommittee on labor, health and human services, education, and related agencies.

Democrats have no one to blame but themselves. The language in the Affordable Care Act created huge gaps in the statutes that defaulted many decisions to the agency in charge. Price reminded Congress of just how often it had surrendered its legislative authority in the passage of ObamaCare, and how much leeway he inherited as Secretary of Health and Human Services:

“You do have the ability to make regulatory changes that would dramatically lower the cost of insurance for Americans?” asked Rep. Andy Harris (R-Md.).

“Fourteen hundred and forty-two times the ACA said ‘the secretary shall’ or ‘the secretary may,’ ” Price replied.

DeLauro’s insistence on the rule of law in her demands for yes-or-no answers yesterday might be ironic even without that context, given Democrats’ resistance to originalism in all other contexts. In this case, though, it’s pure comedy. In their haste to pass the ACA and to punt on how to accomplish the impossible, DeLauro and her party filled a 2800-page bill with more than 1400 instances of the rule of regulatory whim, apparently in the delusion that there would not be any more Republicans in the White House. And even where Democrats stipulated with statutory language, Barack Obama often simply ignored it — especially when it came to enforcing the employer mandate, which his HHS never fully did.

So yes, Price will be able to do both at the same time — enforce the statutes while deregulating as fast as possible without creating an even bigger mess. The halt of the AHCA creates more difficulties for Price than the statutes of the ACA, both legally and politically. Donald Trump insists that he doesn’t want people to lose coverage in the transition, and without the transitional support in the AHCA, Price will have to tread more carefully to ensure against imminent collapse of the marketplaces and putting the blame for that on the Trump administration rather than ObamaCare itself.

It’s that political reality which serves as Price’s regulatory boundary, not the ACA, and certainly not the stunning and laughable hypocrisy of DeLauro & Co and their sudden embrace for legislative clarity and the rule of law. Otherwise, Phase 2 is on whether or not Phases 1 and 3 ever become active.

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