Can Trump really ‘fire’ ObamaCare by himself? Yes … and no

Last Wednesday, Vice President-elect Mike Pence told House Republicans that President-elect Donald Trump is ready to sign executive orders when he takes office that would enable an orderly transition away from ObamaCare, even as Congress begins to debate alternatives and replacements.

Both Affordable Care Act (ACA) opponents and supporters tended to exaggerate how much immediate harm Trump would do to the outgoing Obama administration’s legacy healthcare program.

{mosads}The new president certainly “could” swing a wrecking ball against what remains of the troubled effort to expand insurance coverage under tighter federal government control and substantial taxpayer subsidies. His toolkit of potential executive branch actions is large and varied, but it is not unlimited. The more important questions involve how Trump wants to utilize those powers, and for what objectives.

First, a brief inventory.

The easiest first steps are to turn off whatever rules and regulations remain in the recent administrative pipeline and are not considered “final actions.” In addition, just about any other softer versions of administrative “guidance” and discretionary practices used in implementing the ACA are subject to immediate reversal or modification.

On both fronts, President Obama already stretched executive branch powers substantially in directions favoring the ACA, particularly where the statutory text was ambiguous, or even more restrictive. President Trump could simply adopt the stance of “Mr. Opposite” in undermining ObamaCare (to the extent that the outgoing administration hasn’t already accomplished a good bit of that task inadvertently!).

With a little more patience and care, Trump also could initiate new formal rulemaking to partially revise or reverse older, existing regulations, and to create new ones.    

A new president has great latitude in signaling changes in enforcement priorities. For example, he can settle existing lawsuits on terms less favorable to the ACA’s future, such as one still pending in federal appellate court involving whether cost sharing subsidy payments to ACA marketplace insurers can be made without an appropriation by Congress.

Trump’s Justice Department could reach a more expansive “accommodation” with religious liberty groups still objecting in court to contraceptive coverage mandates imposed on them to various degrees. The new president also could instruct federal officials to back away from threatening substantial penalties on small employers that want to provide less-generous direct contribution assistance to their employees for healthcare expenses.

Any president has vast discretion in rearranging the executive branch’s bureaucratic deck chairs to set new priorities. New offices and initiatives could boost alternative health policy directions more in tune with the wishes of Republican majorities on Capitol Hill and their constituencies. They could offer technical assistance in developing and implementing them.

Trump also could essentially defang the potential powers of the controversial Independent Payment Advisory Board and the Centers for Medicare and Medicaid Innovation even before Congress chooses to act on them.

Acting primarily through his new Secretary of Health and Human Services, Trump could expand the already extensive list of exemptions from the ACA’s individual mandate to essentially eliminate it.

The new president also could subtly (or more explicitly) rewrite many of the other current definitions and boundary lines for ACA programs, practices, and procedures. Waiver authority to work around current-law provisions for both the Medicaid program and the ACA insurance coverage rules is not unlimited, but it allows substantial room for friendly experimentation and discretion at the state level.       

Presidential powers are further enhanced when harnessed in close cooperation with congressional allies.

President Trump could more readily collaborate with Hill Republicans on appropriations riders and other budgetary restrictions that limit the scope and scale of ACA programs. He also could develop outreach programs in the executive branch that would help pave the way for new Republican healthcare programs and policies.

His appointees in federal agencies could marshal evidence and release findings that are critical, rather than laudatory, about the ACA’s accomplishments and aim at highlighting its past problems.

The most powerful force in shaping not what president-elect could do, but what he will do, is his political strategy.

Does he want to facilitate where Republican Hill leaders already want to go, force the issue if progress stalls, stir things up periodically, maximize his negotiating leverage, or just decide to wear a white hat that deflects criticism and blame? Or, all of the above, at different times, as his tweeting urges wax and wane?

Many of the early forecasts of pre-planned disasters ahead fail to appreciate that no president has a stake in producing chaos, widespread harm, and (most of all) loss of popular support. Well, at least up to now…..

Substantial institutional checks and balances remain on how far a president can go unilaterally. Court actions may slow things down, though only partially and belatedly. Voters can quickly shift views if surprised by poor results illustrated by attention-grabbing anecdotes. Vested interests must be managed and pressured carefully.

Majority coalitions can split apart during political duress. Implementation complexities and transitional factors challenge the sequencing and pace of major changes. Finger pointing and overpromising works far better on the election campaign trail than during the rest of four long years spent catching blame in office.

In any case, expect President Trump to decide when and where to shift the balance as the ObamaCare rewrite begins. He will want to ensure that everyone in Washington knows that there is a new sheriff in town, and that he will get to claim results that are viewed as successes, not failures.

But don’t assume he will become any more conventional or predictable than he was during his successful campaign for the White House.

He is sure to use the powers and tools of the Imperial Presidency rather expansively, as did President Obama. We still just don’t yet know exactly when, how, and for what purposes.

Tom Miller is a resident fellow at the American Enterprise Institute and recently moderated an AEI forum on “ObamaCare’s Administrative Law Space: Navigating the Next Frontier.”