Trump’s New Healthcare Executive Order

Yves here. The moderator asked Pence in the Veep debate what Trump planned to do about pre-existing conditions, noting that Trump had said he would Do Something about that when he got rid of Obamacare. Pence ignored the question. It wasn’t clear if either of them even knew about the healthcare executive order discussed below.

This post is also a useful reminder of a point we’ve had to make generally: executive orders are not law. An executive order can’t mandate something that requires legislation….like new spending. A very high percentage of Trump’s executive orders have had all the legal force of a press release, but you’d never know that from some of the reactions.

By run75441. Originally published at Angry Bear

On September 24, 2020, D.J. Trump issued a health care executive order (EO) focusing on protecting people with preexisting conditions and eliminating surprise medical bills. The Executive Order itself will have little or no immediate effect on healthcare law. Instead of laying out a specific plan or action(s) to take, the EO is detailing the administration’s health policy priorities and general agency directives (such as “giving Americans more choice in healthcare”). The EO’s approach is consistent with the seven-item bulleted list released by the campaign in late August and reiterates the hopes of the constituency for affordable healthcare  minus the detail.

The “release” of this Executive Order and its purpose is to distract and redirect attention away from the nomination of Amy Barrett to SCOTUS and blunting the criticism of President Trump for:

1) moving forward with his nomination so close to the death of Justice Ruth Bader Ginsburg ignoring the precedent established by McConnell on nominations close to an election; and trump’s
2) promising and not delivering a health care plan way ahead of the 2020 election.

It is a BS sleight – of – hand maneuver as an Executive order does not create law which is left to Congress and neither can it appropriate funds which is also left to Congress. It too ignores a precedent established by then Senator Jeff Sessions under the guidance of the GAO to block funding outside of already Congressional approved funding while Congressional Representatives Fred Upton and Jack Kingston inserted Section 217 in the CROMNIBUS bill to block the legal transfer of funds from other programs to the Risk Corridor Program. Effectively, both actions killed the Risk Corridor program which was a three year program of seeding insurance companies and Coops while they adjusted to their newly insured needs. The Risk Corridor Program is similar to Part D’s program to do such which is still in existence.

Health Affairs Katie Keith points out , the Executive Order attempts to blunt criticism of the President’s record which is no action on protecting people with preexisting conditions from insurance discrimination if trump and Republicans kill the ACA. As discussed here, protecting people with preexisting conditions is easier said than done. In California v. Texas, President Trump over the objection of his cabinet officials  has asked the Supreme Court to invalidate the entire Affordable Care Act (ACA) which includes the ban on discrimination against people with preexisting conditions. The same as Republicans have nothing of substance to insure people, Trump has nothing in place either. This EO is an extension of the charade by trump to try and show he cares. I think I said it enough times.

An Executive Order can be used to direct federal agencies to draft new rules or give guidance consistent with the President’s legal authority. This is by no means instantaneous and can take up a significant amount of time. Proposed rules and actions responsive to the EO must be created and then solicit public comments and responses before finalizing the rules. This process takes months and sometimes years.

This is not trump’s first excursion into writing having Executive Orders written on his behalf to impact healthcare. Prior EOs include the expansion of non-ACA plans price and quality transparencyMedicarekidney healthrural healthmental health, the pandemic, and prescription drug policy What is necessary is a federal program on healthcare to improve upon the ACA or re[lace it with something better such as single payor which will remove commercial interests from it.

Katie Keith at Health Affairs does exemplary  coverage of the latest Republican attempt at providing healthcare coverage for Americans once a Republican dominated SCOTUS kills the ACA after the addition of another political appointee to the court.

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  1. Bob Hertz

    As a serious student of the ACA, and a general observer of the Supreme Court, I strongly doubt that the entire ACA will be invalidated.

    Judge Barrett recently participated in a moot court on this issue. Not one of the judges voted to invalidate the ACA in this exercise.

    This lawsuit has been disparaged even by conservative legal commentators for months. The conservative justices on the Supreme Court are not just hacks, they do study the law. I predict they will toss out this lawsuit nine to nothing.

    The Trump administration has supported what amounts to legal bomb-throwing, without the slightest notion of how to replace the ACA.

    Here is a more detailed account of the moot court…..

    1. d

      i suspect that it depends, if the majority votes with their emotions and inline with their believes, they will remove lock stock and barrel. i doubt they will leave it in any shape or form . so the pre-existing rules of today will be a memory. if that were to happen before the election it will be a problem for the party who pushed for that. if not, it might be forgotten by the next, or not.
      and since Trump and partners have had roughly 4 years (if not longer) to come up with a new plan and havent, just mesnd they dont have one, and dont care to make one even

      1. Bob Hertz

        Can you find me a single decision where the Supreme Court voted with their emotions? (maybe a few of Scalia’s positions on family issues, but that is just one justice)

        The Supreme Court may favor a certain conservative legal position, but again even conservative scholars are not in favor of this cockamamie lawsuit.

        1. run75441


          You do not believe Justice Ruth B. Ginsburg spoke passionately about women’s rights the same as Scalia may have spoke on family issues?

          In a 5–4 decision, SCOTUS dismissed Ledbetter’s claim, ruling that according to the Civil Rights Act of 1964, she only had 180 days after an instance of discrimination to take her employer to court. Ledbetter could not file her lawsuit any sooner because she wasn’t aware of the years of discrimination she faced until years later.

          Justice Ruth Ginsburg: The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops over time. Comparative pay information, moreover, is often hidden from the employee’s view.

          Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.”

          We would never know how all of the Justices felt on decisions on any one occasion. There is the silence of being on the side of a decision and the verbalization of a dissent Justice Ginsburg aptly made in picking particular decisions apart.

          If we are fortunate enough to have a court which will toss Texas v. California as the 5th Circuit should have done, then we can rest assured some measure of impartiality still exists in SCOTUS which has not been so readily apparent in earlier decisions.

          Others may disagree with my point.

    2. run75441


      “serious student of the ACA?” I believe you sell healthcare insurance, am I correct? In which case, you are more than just a student, you are an expert on the ACA. I got this impression from reading a person of the same name at Gaba’s site.

      Is it absurd? Sure it is and VOX had a pretty good discussion about it in talking to both a liberal and conservative expert. Rather than cite their opinions, I will add some information on the topic of severability as put forth by Erwin Chemerinsky who I know as an expert on constitutional law and ask questions of from time to time. From one article of his:

      A principle of constitutional law is called “severability.” When a court declares a part of a law to be unconstitutional, the question is whether the whole statute should be struck down or whether the offending provision is severable from the rest of the law. In deciding whether the unconstitutional provision is severable from the rest of the statute, a court asks whether the legislature would have adopted the law without the invalidated provision.

      Strangely, Texas Judge O’Connor did not find any provision of the law unconstitutional. Instead, he said Congress’ repeal of the tax made the rest of the law unconstitutional because it likely would not have been adopted without the enforcement mechanism for the individual mandate.

      Severability analysis does not apply at all because no part of the law was declared unconstitutional. I (Erwin) cannot think of any precedent for the proposition that Congress, by choosing to repeal a small part of a law, creates a basis for holding the entire statute unconstitutional.

      The test for severability is whether Congress likely would have adopted the rest of the statute without the provision declared unconstitutional. Here, Congress provided an answer to the question. In 2017, Congress rejected a bill that would have repealed the Affordable Care Act. Also, when Congress repealed the tax penalty, it could have repealed the entire law, but didn’t do that. That seems overwhelming evidence that Congress believed that the rest of the law could survive without the tax penalty provision.

      O’Connor focuses on whether the law would have been adopted in 2010 without the tax penalty. But this is the wrong question. The issue is what Congress desired in 2017 when it repealed the tax penalty of the Affordable Care Act. Put another way, it surely would be constitutional for Congress to enact a version of the Affordable Care Act without the tax penalty provision. Accordingly, there is no reason why a statute without it is unconstitutional.

      The validity of the court taking up the California v. Texas is flawed as a sound “foundation” has not been made for this challenge.

      However, “we” are here in SCOTUS today and it will be taken up by a court which is mostly conservative with the death of Justice Ruth B. Ginsburg and even without the addition of Barrett. Justices Thomas and Alito made their view clear in Sebelius about Congress’s lack of power to pass the ACA. Justices Gorsuch and Kavanagh share similar hostility to federal power. The swing vote with eight justices would be Roberts and there stands the possibility he would side with the others. If Barrett is confirmed, who knows? I tend to treat such things more serious than others having gone through the system.

      You can grab this info out of Time or the newspaper Sacramento Bee or The Atlantic, etc.

  2. Pelham

    That healthcare question wasn’t the only one ignored in the debate. This is somewhat off topic, but I am completely serious when I suggest soundproof booths for presidential and VP debates. As well tougher moderators who hone in and insist on answers. In a booth, the mic could be cut off the moment a candidate veers from answering a question. This would also serve to prevent cross-talking and interruptions. And, as the old quiz show “Twenty-One” revealed, it could make for compelling theater.

    Perhaps one of our civic-minded oligarchs could step up and offer, say, $10 million to the campaign of any candidate who agrees to such a format.

    1. flora

      Soundproof, or completely enclosed booths. Yes, if they want health protection from a pandemic. If a fly can get around a plexiglass one-side barrier I’m pretty sure germs can, too. And about that fly… I can only wonder in my foilier moments if that was a new micro-drone the intel comms were testing out. Flying ‘bugs.’ It’s a thing. / ;)

      1. d

        might could, if viruses had wings. as it is, they dont, they ‘fly’ based on our respiration. nothing fancier than that

    2. run75441


      Booths are a good idea. I also think turning off the microphone for a candidate is ok if they do not stop talking seconds after the time is up. What about candidate Harris’s complaint? “Mr. Vice President, I’m speaking.” I wanted to say; Kamala, just walk over to his area (minding the distance requirement and tell him to “shut the hell up when I am speaking.”

      Ignoring the healthcare question of who has a plan and who does not have a plan or how would you improve upon what we have today was tragically missing.

  3. markodochartaigh

    These executive orders are an ironic conjunction of two authoritarian talking points; society is better governed by fiat of a Strong Leader than laws formulated by representatives of the people, and don’t depend on the government to help the individual. In the unthinkable circumstance that tRump finds a way to remain in power past January the most I would expect from him in the way of a health care plan would be a cookbook of dessert recipes for bake sales to pay off medical bills.

  4. Oh

    I don’t understand why people pay attention to what’s said during debates when they know there’s no way to make these candidates walk their talk. Same with campaign ads.

  5. Sound of the Suburbs

    Leaders like Donald Trump show everything is going according to plan.

    We stepped onto an old path that still leads to the same place.
    1920s/2000s – neoclassical economics, high inequality, high banker pay, low regulation, low taxes for the wealthy, robber barons (CEOs), reckless bankers, globalisation phase
    1929/2008 – Wall Street crash
    1930s/2010s – Global recession, currency wars, trade wars, austerity, rising nationalism and extremism
    1940s – World war.
    We forgot we had been down that path before.

    Everything is progressing nicely and we are approaching the final destination.

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