Day One and the Fate of ObamaCare


This week’s ObamaCare news roundup, curated by Jane M. Orient, M.D.

On the first day of his Administration, President Trump signed an Executive Order “granting modest relief from Obamacare,” as described by Avik Roy (Forbes, Jan 20, 2017). “Relief” implies that the so-called Affordable Care Act” is causing damage and pain—as in the form of “stiff premium hikes.” These result from provisions in the law that require insurers to charge young persons at least one-third what they charge older persons even though the young cost only one-sixth as much. Another cause is the “essential health benefits,” many quite costly. The Administration has some flexibility in this definition. Trump could also decline to enforce the individual mandate—arguing that it is unconstitutional.

Some argue that the constraints of ACA and the Administrative Procedures Act—and the President’s duty to “faithfully execute the law” make the Executive Order largely symbolic. Seth Chandler, however, argues that Trump’s actions can “severely damage” Obamacare (Forbes, Jan 20, 2017). He could “delay” enforcement of individual and employer mandates—following the Obama precedent of selective enforcement to benefit his cronies. Trump could expand “hardship exemptions” from the individual mandate so that basically nobody has to pay what many conservatives still regard as an unconstitutional tax. [And aren’t those premiums a hardship to almost everyone?] Trump could also extend the option of the states to permit insurers to sell insurance policies that do not comply with ACA requirements regarding matters such as “benefit packages” (maternity, contraceptives, pre-existing condition limits, etc.)—the same way President Obama did in November of 2013—by executive order and a regulatory guidance!

A long list of possible actions was compiled by Nicholas Bagley and Adrianna McIntyre. These include reducing payments to insurers; expanding the reach of the contraceptive mandate accommodation (currently available to religious nonprofits and closely-held for-profit companies); striking contraception from the list of women’s preventive services; adopting rules under section 1333 to enable more flexible cross-state insurance sales; pulling the plug on mandatory (or voluntary) demonstration projects through the Innovation Center; and curbing nondiscrimination protections, which the Obama administration interpreted to cover gender identity.

Politically speaking, Obamacare may be a “Dead Plan Walking.” It is so convoluted that untangling it is an enormous challenge. And while it places a huge burden on the self-employed, self-insured, and the previously insured, there are plenty of newly insured to raise a squawk. It seems designed to fail in every way except politically. Paul Jacob writes: “Still, Obamacare can be repealed. But replacing it would be a disaster. The best plan is no plan. Repeal all the regulations. The federal government should completely deregulate the markets, and prevent states from ruining interstate markets in insurance and health care. Do what the Commerce clause was designed to do” (Townhall, Jan 8, 2017).

If anything more than repeal is needed, it is more repeal: “We shouldn’t be stopping at Obamacare. We should repeal the horrendous reforms that brought us HMOs and allowed for insurance monopolies,” writes Kira Davis (RedState, Jan 12, 2017).

What Congress is likely to adopt is a “repeal and delay” strategy in an attempt to stabilize insurance markets, writes Christopher Condeluci (Forbes, Jan 15, 2017).

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