Can the ACA Withstand Executive Orders?

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"Major changes in the ACA's regulatory environment will require the cooperation of several federal agencies and often state regulators."
"Major changes in the ACA's regulatory environment will require the cooperation of several federal agencies and often state regulators."

President Trump's executive order, aimed at cutting the cost of healthcare services and insurance and thus cutting down on services, may not impact the Affordable Care Act (ACA), constitutional experts reported in a recent “Perspective” article published in The New England Journal of Medicine.1

“President Trump cannot repeal the Affordable Care Act (ACA) by executive order,” explain Timothy Jost, JD, from Washington and Lee University School of Law in Lexington, Virginia, and Simon Lazarus, JD, with the Constitutional Accountability Center in Washington, DC. “The ACA is a statute, enacted by Congress, which under the Constitution only Congress can repeal or modify.”

Since President Trump delivered his executive order on health care — one of his first acts in office — there have been speculations that it could “scale back Obamacare,” “gut the ACA,” or have no impact at all. However, before making claims about its impact, Jost and Lazarus argue that it is important to understand both the executive order and what changes can lawfully be made.

The goal of the ACA is to provide affordable health care for Americans by ensuring healthcare insurance coverage for all, including those with pre-existing conditions and low incomes, explain Jost and Lazarus. In contrast, the goal of the executive order is to lower costs by allowing for more exemptions or delays in implementation of the ACA. According to the authors, any policy priorities within the executive order cannot legally impede the overall goal of the ACA.

“Over time, the Trump administration will undoubtedly revoke or amend Obama administration rules or guidance. But major changes in the ACA's regulatory environment will require the cooperation of several federal agencies and often state regulators as well,” the authors argue.

Some have speculated that the Trump administration will either stop enforcing certain ACA requirements, such as penalizing those who do not purchase insurance. Or it may grant more “hardship” exemptions for individuals whose circumstances impact their ability to purchase coverage. 

However, the Supreme Court has said that courts can intervene to ensure that the ACA is enforced in ways that improve health-insurance markets. Since President Trump's executive order would likely lead to dropped coverage and increased premiums — which would conflict with the goals of the ACA — its provisions would be difficult to implement, Jost and Lazarus write.

Regardless of President Trump's effort to change how the ACA is implemented, many Republicans are now questioning the ethics of “sabotaging” the ACA, the authors explain.

“Precipitous changes in the enforcement of the law would severely disrupt insurance markets, with political, no less than policy or humanitarian, consequences,” they conclude.

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Reference

  1. Jost TS and Lazarus S. Trump's Executive Order on Health Care — Can It Undermine the ACA if Congress Fails to Act? The New England Journal of Medicine. 2017; 376: 1201-1203. doi: 10.1056/NEJMp1701340

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