Trump vs. the Affordable Care Act—Now What?

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When you f**k with people’s health care, um, they tend not to like it. Will Donald Trump’s attempted f**kery by way of executive order actually stick to his own legacy while he tries to diminish Barack Obama’s? (Photo Credit: Brennan Linsley/AP)

When Barack Obama stepped into office in 2009 and began signing executive orders, he was criticized vociferously by conservatives, Republicans, and the combination therein. Never mind that they were primed to look for any reason to hate on Obama—Sean Hannity even took time out to assail #44 for his choice of condiments on his burger, of all things—but the suggestion was that Barack Obama was content to rule by fiat rather than work with Congress, Democrats and Republicans alike. Not one to hold his feelings and opinions back, Donald Trump was among these vocal critics, regularly attacking the man who would eventually hand him the keys to the White House, so to speak, on matters of playing golf and issuing executive orders. Of course, now that “the Donald” is President, he spends more than a quarter of his time golfing—usually at one of his resorts and thereby costing the taxpayer while lining his own pockets. As for executive orders, Trump’s pace thus far is likewise hypocritical. As of this writing, Trump’s 49 executive orders puts him on pace to sign the most orders in 50 years. Now if only he could fill his Cabinet with this much alacrity and zeal!

This most recent Trump executive order is especially notable in the context of the apparent war waged by the GOP on affordable health care in the United States of America, as it specifically addresses the Affordable Care Act. Broadly speaking, the executive order is aimed at allowing small businesses skirt some of the requirements currently imposed by the ACA. One of its major functions is to ease the rules that govern the creation of “association health plans,” which are plans that can be created by small businesses across state lines through trade groups, theoretically designed to drive down insurance rates by increasing competition. As Bruce Japsen, a Forbes contributor, tells, however, AHPs don’t have a track record of great success. The idea of association health plans has existed for decades, but according to Japsen via those who have studied interstate insurance sales over time, these plans have not met with much efficacy. AHPs have been prone to cost-cutting methods which have also meant cutting the quality of service, not to mention they’ve been subject to their fair share of fraud and insolvency. As critics have outlined, there is increased risk of “essential health benefits” no longer being covered by these new plans, as well as fewer options and higher premiums on the individual market. In addition, in states where buying insurance across state lines already exists, plans that make use of this provision are sparse to nonexistent. As Japsen details, this “hasn’t worked in large part because plans haven’t wanted to spend the money contracting with more doctors and hospitals in areas they have no enrollees.” For consumers and insurers alike, the prospect of association health plans has been a losing proposition.

The other major function of President Trump’s executive order is to increase the limits by which insurance plans can be considered short-term insurance plans. Effectively, it would be undoing an Obama-era provision that narrowed the window to three months of eligibility for these plans—which are intended for people expected to be out of work only for a limited period of time. By expanding the period of time that these plans can be used by employers, which tend to offer fewer essential benefits and involve higher out-of-pocket costs, it is that much more likely that healthier people will use short-term plans to circumvent the ACA. With respect to the ACA plans, this likely will lead to higher premiums, fewer insurers, and thus, less competition and stability. Other than that, though, a great idea, eh?

Overall, the theme is one of offering less expansive health coverage while at the same time increasing premiums for the most vulnerable Americans, namely the elderly, the poor, and the sick—often one and the same given a previous inability to accrue savings or the simple fact of not having a steady source of income beyond supplemental avenues—and decreasing the number of available insurance options, all under the guise of cutting costs and creating competition among insurers. In other words, Trump’s executive order is not all it’s cracked up to be, which explains why opposition to it is so widespread, including from consumer groups, physicians groups, policy analysts, and state officials. While the very legality of this executive order has yet to be decided, as with a number of Pres. Trump’s directives in their original form, and while the order merely provides direction to government agencies with respect to how they should interpret elements of health care touched by the Affordable Care Act to alleviate financial burdens, it seems apparent that Trump is not altogether concerned with the long and short of what his own authorization contains, but rather merely that this will eat away at a significant portion of Barack Obama’s legacy as POTUS. This is to say that Donald Trump evidently is OK with ending the so-called “mess” that is ObamaCare whether it works or not, Tweeting as Americans threaten to slide down into the abyss.

And this is before we even get to the issue of ending Affordable Care Act subsidies. President Trump stated that he plans to end federal payments to insurers as part of cost-sharing reductions that allow consumers to manage their deductibles and out-of-pocket expenses. The timetable for this shift is—surprise!—unclear, although some believe the cutoff will arrive next month. Coincidentally—though likely not coincidentally—open enrollment for coverage through ACA marketplaces is set to begin in a few weeks. Accordingly, Trump has been charged with figuratively “throwing a bomb” into these marketplaces, the fallout of which would stand to disproportionately affect Americans in the states that voted him for in the presidential election. Thanks for your support, guys, but it’s time for you to pay more or die! It’s telling when Democrats are on the same side as health insurance companies on an issue, and when congressional Republicans are urging the President to continue these subsidies despite them being challenged in court by House GOP members. Speaking of the courts, a number of states have sued to stop the removal of these subsidies, and more lawsuits are apt to come from insurers and other concerned parties. Donald Trump’s move to essentially “gut” the Affordable Care Act may be his way of trying to push responsibility onto Congress and various federal agencies like the Department of Health and Human Services, but it comes with real consequences. Might these consequences also come in the form of political damage for Trump and the rest of the GOP? Though his popularity has steadily declined, Trump has yet to really feel the brunt of strong criticism for his poor decision-making, especially among his supporters. Then again, if he f**ks with their health care, all bets might be off.


On the specific subject of these ACA subsidies—the main reason for the furor over Pres. Trump’s decision, at that—the debate seems to be a striking example of what is technically correct and what is morally correct. I alluded to the notion earlier that House Republicans have challenged the legitimacy of the subsidy payments. As a federal court decided, this challenge has merit. The Obama administration approved Cost Sharing Reduction (CSR) subsidies that go directly to insurers in an effort to reduce the bottom line of the consumer. As the court found, however, this violates the Constitution because it involves the executive branch making appropriations and bypassing Congress to do it, a violation of the separation of powers doctrine fundamental to the idea of checks and balances. Additionally, by giving money to insurance companies, this, in theory, materially benefits them, though the companies allege consumers are the primary beneficiaries. It’s no small potatoes, either—we’re talking billions of dollars here. This is the aspect of the subsidies that Donald Trump, friend of the American people and of the little guy, has latched onto in explaining why he is choosing to end these subsidies so abruptly and why now. You know, because if this were truly a principle-of-the-thing kind of thing, wouldn’t you have ended the subsidy payments when you first got into office? Unless you were convinced that you and your Republican cronies were going to ram a repeal of the Affordable Care Act down our throats before it even got this far? I mean, did you even think about the matter this hard?

So, yes, CSR subsidies may not be technically constitutionally correct, and conservative publications and thinkers which shamelessly defend the President have already hailed this directive as a defense of law and order in these United States. Never mind his myriad potential other constitutional offenses and conflicts of interests—in the arena of what-have-you-done-for-me-lately, Trump is A-OK. On the other hand—and this is the critical point in all this discussion of the Affordable Care Act, subsidies, and making affordable health care less a luxury and more a right (as it should be)—to yank away these subsidies suddenly like a rug under the feet of average Americans, as many would argue, is not the morally advisable course of action. Even Trump’s boasting on Twitter about hurting the stocks of health insurers smacks of an emotional disconnect with the consumer. While few would or should feel bad for corporations, which do not have feelings and don’t exist outside of the world of legal entities, having share prices dive affects shareholders, and could even result in employees within these companies losing jobs. There are real people behind the dollars and cents that go up and down. It’s not a game.

Of course, Donald Trump’s moral compass has long been suspect in its utility as a guide, if not completely broken. As such, we perhaps shouldn’t be surprised he would put himself at odds with the needs of his constituents, let alone the wishes of his Republican comrades in his adopted party, many of whom are likely to face stiff contests in 2018 in midterm elections, let alone GOP primaries leading up to the big shebang. Already, if Roy Moore’s defeat of Luther Strange in Alabama to fill the vacancy left by Jeff Sessions when he became Attorney General is any indication, “establishment” candidates/incumbents are facing a voting public that has soured on Congress’s well-established tradition of being inefficient and ineffectual in representing the needs of the working class and middle-class America, demographics on the seeming decline as they are. Thus, while Trump himself may be safe given that incumbent Presidents seeking re-election tend to be victorious and that Democrats seem unlikely to unite behind a sufficiently progressive candidate, if voters connect the dots between failures in health care and a faulty GOP health care strategy, contested seats may not be as secure as Republican congressional leaders might otherwise be led to believe.

Donald Trump, in his usual grandiose style, stated that there is no more such thing as ObamaCare, that it is “dead” and “gone.” Also as usual, his rhetoric is misleading. Trump’s executive order and his intended end to subsidized lower insurance costs through the Affordable Care Act would be devastating to insurance marketplaces, an effect exacerbated by the timing of this decision/its proximity to open enrollment. However, without a satisfactory plan waiting in the wings, #45 is invoking the name of congressional Democrats and Republicans and insisting that the two sides work together for the sake of a “short-term fix.” This is not how good political leaders operate: by coercing lawmakers into action, including those of his own adopted party, and encouraging a standoff between the executive and the legislature. It’s bullying, and it’s a refusal to own his own failure in being unable to negotiate a deal that would see a credible surrogate for the ACA. Meanwhile, at least 18 states are suing to block a halt to the CSR subsidies, with insurance premiums and federal budget deficits set to increase significantly if Trump’s plan—if you can even call it a plan—comes to fruition. That’s not just bad for insurance companies and the senators who have counted them among their biggest donors. That’s bad for the entire nation.

In the name of his own vanity, President Donald Trump aims to throw a wrench into the workings of the Affordable Care Act as a means of somehow erasing Barack Obama’s legacy. Obama’s historic presidency, however, is more than just the sum of the legislation he signed into law, and while Obama was far from perfect as leader of the country, he is light-years ahead of Trump in intellect, moral fiber, and professionalism. As aforementioned, thus far, not much in the way of negative associations have stuck with Teflon Don, during his tenure as POTUS or, for that matter, in light of his overrated track record as a businessman and entrepreneur. Perhaps through the lens of TrumpCare, though, the shine on his unnaturally orange visage will begin to fade.

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