authority

While the White House press corps pores focuses on how many people showed up on Inauguration Day, President Trump’s first executive order is already weakening Obamacare in preparation for the repeal and replace effort in Congress in the coming weeks.

The order instructs all relevant agencies, primarily the Department of Health and Human Services, to “ease the burden” of Obamacare.  If that sounds vague, that’s exactly how it was intended.

Health care policy expert Dr. Merrill Matthews of the Institute for Policy Innovation says the lack of specifics means a lot of actions can be taken to protect patients.

“Departments and agencies with control over Obamacare under the Affordable Care Act ‘shall exercise all discretion and authority available to them to waive, defer, grant exemptions or delay the implementation of any provision in the act,'” said Matthews.

“They can also relieve the states of cost, fee, tax, penalty or regulatory burdens on individuals, families, health care providers, health insurers, patients, recipients and so forth and so on,” said Matthews.

So what does all that mean?

“It’s a very broad statement, which says those people who are in charge, basically the secretaries – primarily of Health and Human Services but perhaps also the IRS and maybe a few other agencies, have the freedom under this executive order to try to step in and say, ‘We’re going to try to reduce the burden of Obamacare with respect to mandates, penalties and taxes,” said Matthews.

And despite Obamacare being passed by Congress, Matthews says the way it was written allows the Trump administration to take the teeth out of the law even before Congress acts.

“There was nearly 3,000 references to the word secretary in the Affordable Care Act.  Nearly all of those apply to the secretary of Health and Human Services.  The language was, ‘The secretary shall determine,’ ‘the secretary shall decide,’ ‘the secretary shall set penalties’ and so forth.  The law itself gave the secretary of Health and Human Services a lot of discretion to carry this out,” said Matthews.

“I would argue that the ability to provide all that power to the secretary to implement the law also provides a lot of power to the secretary to un-implement the law,” said Matthews.

Matthews says Trump is exercising “transitional authority,” a power that Obama claimed when changing or delaying certain components of the law.  It’s something Matthews says Obama became quite brazen about.

“President Obama had moved the situation to the point where he said in a speech, ‘I’m going to do what I feel like needs to be done out there.  If Republicans don’t like it, sue me,'” said Matthews.

Republicans cried foul at the time, but Matthews says this usage is only undoing what Obama shouldn’t have been able to do in the first place.

“Once they set the precedent, it’s hard to be too critical of it.  Conservatives felt like that was overreaching.  But if [Obama] overreached, I’m not sure it’s bad overreaching to pull it back and say, ‘You never had the authority to do that.’  We’re in essence bringing it back to the status quo ante,” said Matthews.

Matthews also points out that this will take place in a very brief window before Congress acts to repeal and replace the law.

“This is very temporary and it’s meant to begin relaxing these burdens while Congress takes action to actually repeal and replace the legislation,” said Matthews.

In addition to easing the burden of the law before Congress gets to work, the executive order stands as a message to Congress.  Matthews says Trump is asking lawmakers to follow his lead.

“The executive order that Donald Trump released in essence says, ‘Here’s the flag.  I’m showing you where I’m going on this.  You have my permission to begin to scroll this thing back as far as you can within the limits of the law,” said Matthews.