Death by a Thousand Cuts -- or One Executive Action -- to Obamacare

Shortly after signing an executive order barring any new regulations by federal agencies, President Donald J. Trump signed another order that mandates his agencies to “to waive, defer, grant exemptions from or delay the implementation of any provision or requirement of the [Affordable Care] Act [ACA]” that they deem to burden individuals, insurers, health-care providers, or states." Both the individual mandate and employer shared responsibility provisions could be watered down or eliminated entirely once the new chief of the Department of Health and Human Services (HHS) is installed. The president cannot by executive order eliminate the ACA, so his action appears to pave the way to end the individual mandate that all Americans must purchase health insurance and the employer mandate that all businesses with 50 or more employees must provide health insurance. It also lights a road path for insurers to sell policies across state lines. Using the budget reconciliation process, Congress can defund the ACA with no filibuster possible in the Senate. But ACA provisions embedded into many other laws -- for instance, the ban against pre-existing condition exclusions and the mandate for insurers to cover adult children until age 26 -- appear permanently entrenched, and Trump himself has said he plans to keep at least those two. In a way, the new president's executive order is reflective of the way President Obama and his agencies implemented the ACA -- by regulation and executive fiat even when the law itself mandated other outcomes or deadlines -- for instance, in delaying employer shared responsibility, the provision that 50-employee-plus companies must provide health insurance, by simple agency announcement. However, with Trump nominees still undergoing the vetting process in Congress, it seems unlikely that a department like Health and Human Services (HHS) would move to gut the signature legislative achievement of Barack Obama.