On his first day in office, President Trump signed an executive order that directs “the Secretary of Health and Human Services and the heads of all other executive departments” to slow walk further implementation of Obamacare until he and Congress can repeal it. Because it was legally passed and signed into law, he couldn’t simply tell them to ignore the statute — as his predecessor would have — but much of what Obamacare’s apologists call “the law of the land” actually consists of regulations inferred from its hopelessly nebulous language. Thus he can, and did, order the bureaucrats to prevent further regulatory harm.
A textbook example of the bureaucratic mischief that the President’s order seeks to stop is the contraception mandate. Nothing resembling this edict appears in the “Affordable Care Act.” It was the brainchild of HHS apparatchiks and arbitrarily added to the list of “minimum essential benefits” that all health insurance must include, whether sold through Obamacare’s exchanges or offered by businesses to their employees. The damage done by this one regulation, in terms of restricting religious liberty, destroying businesses, and wasting taxpayer dollars, is incalculable. This executive order seeks to prevent further such outrages.
The actual text of the Inauguration Day order consists of six brief paragraphs. Section 1 begins thus: “It is the policy of my Administration to seek the prompt repeal of the Patient Protection and Affordable Care Act (Public Law 111-148).” It goes on to say that, “pending such repeal,” the Trump administration will make sure that the law is efficiently implemented, but that it will also assure that the myriad economic and regulatory burdens that it places on the nation are minimized. It also indicates that the administration will provide the states with “more flexibility and control to create a free and open healthcare market.”
Section 2 speaks directly to the HHS secretary and the leaders of all other executive branch agencies, charging them to use their authority to delay the implementation of Obamacare in any way that doesn’t conflict with the legal duties of their positions. It pointedly orders them to focus on provisions that would impose fiscal and regulatory burdens “on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.” It tells them, in other words, to take this deadweight off the backs of the voters.
Section 3 instructs HHS to remove the federal yoke from the necks of the various states. Despite the 2012 ruling against the Obama administration in NFIB v. Sebelius, wherein SCOTUS ruled Obamacare’s Medicaid mandate unconstitutional, the Obama administration has continued to lean on the states to comply. This section tells HHS to cut it out: “The Secretary and the heads of all other executive departments and agencies with authorities and responsibilities under the Act, shall exercise all authority and discretion available to them to provide greater flexibility to States and cooperate with them in implementing healthcare programs.”
Section 4 is about creating a national health insurance market. At present, insurers can’t sell their products across state lines. Thus, in many states, one or two large companies enjoy virtual monopolies in the health insurance market. This section of the order directs executive branch agencies to “encourage the development of a free and open market in interstate commerce for the offering of healthcare services and health insurance, with the goal of achieving and preserving maximum options for patients and consumers.” The competition created by this would drive health insurance prices down more than any other free market proposal.
Section 5 shouldn’t even be necessary. It merely requires that executive agencies follow the law when they promulgate new rules and regulations. The atrocious record of the Obama administration, however, has been such that Trump and his advisors felt the need to remind the various agencies that they are not above the law: “To the extent that carrying out the directives in this order would require revision of regulations issued through notice-and-comment rulemaking, the heads of agencies shall comply with the Administrative Procedure Act and other applicable statutes in considering or promulgating such regulatory revisions.”
Section 6 is standard executive order boilerplate: “Nothing in this order shall be construed to impair or otherwise… [yawn.]” But this President’s order is by no means ordinary. Nor is it a symbolic bone thrown to his supporters to convince them that he is keeping an empty campaign promise. It is, rather, a clear signal to the bureaucracies that ultimately answer to him as the head of the executive branch. He knows the policies of some Presidents tend to evaporate, despite having been passed by Congress and signed into law, due to the intransigence of federal bureaucrats. Trump is telling them that this isn’t going to work with him.
The President seems to instinctively understand that the bureaucrat’s most dangerous weapon is his inbox. Politicians come and go, as they see it, but bureaucracies are forever. But Donald Trump is no ordinary politician. He is telling the apparatchiks at HHS, DOJ, IRS, and the rest of the alphabet soup saboteurs that real change is coming. They will test him, of course, as will their accomplices in “news” media and the aging Democrat opposition. However, as when PATCO tested Reagan, they probably won’t be happy with the result. Trump is turning out to be better at this game than many observers, including yours truly, ever expected.
The reality that his opponents have forgotten is that much of Obamacare can be repealed by this executive order for the same reason the justly reviled contraception mandate can be tossed onto the ash heap of history. Even the much-hated individual mandate can be effectively neutralized by simply expanding the eligibility for hardship waivers to anyone without insurance coverage. It just takes the stroke of a presidential pen, and Donald Trump has clearly shown with Friday’s executive order that he isn’t afraid to wield that particular weapon.
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