The President can mortally wound Obamacare but he can’t do it with tweets.
The President has been quick to criticize congressional Republicans for failing to repeal Obamacare. But Trump has also been guilty of dragging his feet — and with far less justification. Whereas any repeal legislation requires the support of a congressional majority, the President has the authority to take unilateral action that will ensure Obamacare’s demise. He can halt illegal subsidies to insurers, order his Secretary of Health & Human Services (HHS) to dismantle the law’s regulatory foundation, and eliminate Congress’s illegal exemption from Obamacare. Trump can do all of these things today, yet has done nothing but issue empty threats. It’s time for Trump to put his pen where his tweets are.
The first step he should take would also be the easiest. The illegal subsidies referenced above involve “cost sharing reduction” (CSR) payments issued by the Obama administration to insurers, despite the absence of an appropriation by Congress. U.S. District Judge Rosemary Collyer ruled last year that these payments flouted the Appropriations Clause of the Constitution. The Obama administration’s lawyers later filed an appeal, of course, but they didn’t have time to pursue the case before they had to pack their bags and make room for the new administration. President Trump has the authority to drop that appeal and stop these illegal CSR payments immediately. Yet he has been temporizing since January.
At first, he claimed this was a negotiation strategy. Trump suggested in a Wall Street Journal interview that he could use the CSR payments as leverage to force Democrats to the bargaining table on repeal. Predictably, the Democrats demonstrated that they had no intention of dealing in good faith on Obamacare. Ron Wyden, the ranking Democrat on the Senate Finance Committee, responded by conflating Trump’s threat to cut off the subsidies with terrorist tactics. House Minority Leader Nancy Pelosi released a similarly hysterical statement. This Democrat intransigence and the failure of the Republican repeal effort leaves Trump with no excuses. He should halt the CSR payments right now.
Halting the unconstitutional CSR payments would have a devastating effect on Obamacare that would be greatly augmented by an aggressive attack on its regulatory foundation. One of the “reform” law’s most notorious features involves the enormous amount of discretion it bestowed upon the HHS secretary. It gave this Beltway bureaucrat the power to create “rules” that have all the force of law. Many of Obamacare’s best known provisions are really nothing more than arbitrary regulatory fiats issued by former HHS secretary Kathleen Sebelius and her successor Andrew Slavitt. A textbook example is the controversial contraception mandate, which can be found nowhere in the text of the law itself.
The Democrats who bestowed all that power on the HHS secretary never anticipated that it would be wielded by an Obamacare opponent like Tom Price. Trump should take advantage of their short-sightedness by instructing Secretary Price to use his authority to reverse the regulatory tide that is drowning ordinary Americans. Among the things Price can do is relax coverage mandates that force enrollees to buy coverage they neither need nor want, render it easier for states to get waivers that free them from onerous Obamacare regulations, and of course kill the contraception mandate used by the Obama administration to assault the First Amendment rights of individuals, businesses and religious organizations.
Once Trump has halted the illegal CSR payments and unleashed Tom Price on Obamacare’s regulatory framework, Trump can deploy his doomsday weapon — the elimination of the illegal exemption from Obamacare enjoyed by members of Congress. This special dispensation was granted when Trump’s predecessor directed the Office of Personnel Management (OPM) to classify Congress as a small business and congressional staffers submitted a fraudulent application to the D.C. Small Business Health Options Program (SHOP) exchange. This document claimed that the House and Senate employ 45 people each. Trump can end this travesty by instructing the OPM to rescind Obama’s directive
If Trump truly wants to get the attention of Congress, forcing them to live under the same onerous Obamacare rules that the hoi polloi endure will certainly do the trick. It is likely to produce a level of bipartisanship rarely seen on Capitol Hill, particularly when staffers on both sides of the aisle revolt en masse. Moreover, it would inevitably improve President Trump’s job approval numbers prodigiously. Voter surveys have consistently shown that a huge majority of Americans disapprove of Congress’s special dispensation and want it put to a halt. If Trump follows through on his threat to eliminate it no amount of media spin will convince the public that he is in the wrong. The electorate will back him all the way.
In fact, the voters will probably back him on all of the steps outlined above, if he will only convert his tweets into action. At the end of July, in frustration with congressional inertia on repeal, Trump issued this ultimatum: “If a new HealthCare Bill is not approved quickly, BAILOUTS for Insurance Companies and BAILOUTS for Members of Congress will end very soon!” It is fully within his power to halt illegal subsidies to insurers, order his Secretary of Health & Human Services (HHS) to dismantle the law’s regulatory foundation, and eliminate Congress’s special dispensation from Obamacare. It’s time for the President to stop tweeting and start whacking the D.C. establishment over the head with a two-by-four.
If he doesn’t do so in the very near future, it will erode his credibility even among his most loyal supporters. Talk is cheap. They elected him because they want action.