Healthcare by Executive Mandate

Obama and Trump, licensed under CC BY-NC
“Wouldn’t it be great to Repeal the very unfair and unpopular Individual Mandate in ObamaCare and use those savings for further Tax Cuts for the Middle Class. The House and Senate should consider ASAP as the process of final approval moves along. Push Biggest Tax Cuts EVER” — Donald Trump, 1st November 2017

I’ve included the above tweet as I believe it highlights everything that is wrong with Trump’s current approach to governing. Ill-informed, over-simplistic and intended to both stir up his base and attack Obama’s legacy — the double whammy. All it needed was a mention of Hillary Clinton and we’d have Trump tweets bingo. This specific insight into the president’s stance on healthcare however is revealing. Rather than providing a vision, or a new direction for the country, his real concern is to continue dismantling any achievement of the Obama administration. Removing the individual mandate whilst keeping the rest of the Affordable Care Act (ACA) in place would be disastrous for the millions of Americans who rely on it for their health coverage. It could also potentially send the Obamacare exchanges into this infamous ‘death spiral’ which Trump has been clamouring for seemingly since the legislation first passed in 2010. Due to his inability to effectively lead Congress thus far in repealing and replacing Obamacare, Trump may once again be turning to executive orders to facilitate this weakening of the exchanges and increases in premiums which could force Congress to act.

President Trump has already acted to sabotage the ACA with both an executive order in January which stated his administration would not be strenuously enforcing the individual mandate, and by reducing the open enrolment period. However, perhaps the most damaging executive order so far was to stop the cost-sharing subsidy payments set up by President Obama. These subsidy payments ensure poorer citizens are not placed at a disadvantage. Essentially, if you have a low income and you buy health insurance, under the ACA a government subsidy ensures your deductible (the amount you pay before your healthcare plan takes over) isn’t too high. No subsidies mean either the insurance company can back out of the federal contact to sell health plans, or higher premiums as they take over the cost. Stopping these payments hurts roughly seven million low income Americans, but is politically advantageous for Trump as he can now further point to the ‘failure’ of Obamacare once premiums go up again.

These payments were initially set up by the Obama administration, and almost immediately faced opposition from the GOP. Not to re-hash the last six years of healthcare debate, but destabilising and undermining the ACA is not exclusive to Trump. The GOP sued the Obama administration for spending these funds in a way they argued it had not been appropriated for, causing years of more uncertainty in the markets and doubt on whether the subsidy would remain. Ultimately in 2016 UnitedHealth, the U.S.’s largest health insurer, announced they would withdraw their plans on the ACA exchanges in most of the thirty-four states it was present in. Both Trump and the GOP have been actively sabotaging this bill, and each time they cause real damage it’s claimed as an example for why they must repeal it. Unique to this now however is that we have the bizarre situation in which both a Republican Congress and White House are opposed to this bill, but too fractured to legislatively change it. Now, the expanded power of the executive order which Obama used to sustain the ACA is being used against it.

This could come to a tipping point in the upcoming tax reform push, with the attachment to that vote a repeal of the individual mandate within Obamacare. The individual mandate put simply is a part of the ACA which legally requires insurers to cover everybody, at similar rates, regardless of pre-existing conditions. Obamacare also required everybody to buy insurance with the individual mandate, and provided financial assistance to individuals below a certain income. If you’re born with a health issue, you’re not denied health coverage or charged at an extortionate rate because of it. This then meant insurance companies costs would have to rise to cover these additional expenses. The individual mandate prevented healthy people from avoiding buying health insurance, which would then put this inflated cost unfairly on those with pre-existing conditions, by applying a fine. Without this in place, and with the loss of cost-sharing subsidy payments, it’s difficult to see how Obamacare could survive and how the current 11 million Americans using it maintain health insurance.

Should the attempt to incorporate the repealing of the individual mandate into tax reform fail, we again face the new powers of executive order. Within the individual mandate is a “hardship exemption” which waives the fine if you can demonstrate you can’t afford health insurance. As part of Obamacare, those within this category were decided by the administration. Now, the new administration is openly hostile towards the bill. Potentially, through executive order Trump could broaden this category to allow more healthy people to avoid the fine and not buy health insurance — further sabotaging the bill and reducing coverage whilst simultaneously raising premiums for Americans. These blows to the ACA, which is enshrined by law, is part of the slow resignation of the legislative branch of many of their original responsibilities.

Now, there are reasonable criticisms to be made of the power seceded by Congress to the presidency in modern history. For example, you could look at the current use of AUMF (Authorization for Use of Military Force) passed after September 11th by the Bush administration. This bill has since provided justification for the executive branch to involve U.S. forces in countries all around the world without members of either Congress or the public being aware, as the casualties in Niger showcased. During Obama’s presidency, once he lost both the house in 2011 and the senate in 2015, he increasingly turned to executive orders to bypass the Republican Congress. A Congress which at the time seemed to be focused on solely obstructing Obama’s agenda and denying him a supreme court appointment.

However, at present the Republican party possesses both the White house and Congress — so why is Trump also having to rely on the power of executive orders? With this dysfunctional party holding majorities in the house and the senate, which is also apparently opposed to any efforts of bipartisanship, there remains no credible check on the executive branch. This is not only worrying for the use of executive orders, but depending on the outcome of the on-going Mueller investigation could be direly needed should members of the administration be found to have violated the law.

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