How Trump Can Gut Obamacare Without Congress
Cancer is a devious and devastating disease. All it takes are a few bad cells to grow uncontrollably, first destroying organs, then an entire person. It can also lie dormant for years after supposedly being cured, then at some moment awaken from its remission slumber to resume its search-and-destroy mission. Even if cancer is controlled, it can still leave its victim in a weakened or debilitated condition, a shadow of its former robust self.
What if the Affordable Care Act, affectionately known as Obamacare, was unintentionally infected with cancer back in 2010 when it was voted into law? What if the cancer could be reactivated at any time? After all, we had to “pass the bill to find out what’s in it” according to one of its proponents. Surprise, the dormant cancer is already in the law.
Ideally, cancer is removed from the body entirely. A true cure. For Obamacare, this would mean repealing the bill entirely. Despite campaign promises of repeal, legislatively, this is a nonstarter. This is worth a brief review as many think a simple repeal bill from the House is possible.
Remember that the Affordable Care Act originated in the U.S. Senate. Thanks to the eventual election of Al Franken after numerous recounts, and the defection of Arlen Specter to the dark side, the Senate had the necessary 60 votes for cloture, shutting down the filibuster. This led to passage of the ACA without any Republican votes, on Dec. 24, 2009. Merry Christmas.
Enter Scott Brown a month later, eliminating the 60-vote Senate majority. The bill went to the House. If they made any changes to the bill, it would go to House-Senate conference and the resulting new bill would need to be voted on again by the Senate where 59 Democrat votes wouldn’t shut down the inevitable Republican filibuster. So Nancy Pelosi and the House voted on and passed the original Senate bill, without changes, which then went to President Obama to be signed into law. A very practical compromise by the Democrats to get a bill passed.
House Democrats still had concerns after being shut out of the debate. A second bill then emerged, called the Health Care and Education Reconciliation Act of 2010. This new bill dealt with budgetary items only - funding, subsidies, taxes – meaning, it would not be subject to the filibuster based on the Congressional Budget Act of 1974. Only 50 Senate votes would pass the reconciliation bill, which the Democrats had.
Undoing all of this, like untangling a knot, requires backing up, reversing the process in order. Which is why the current House repeal plan is a reconciliation bill, involving only budgetary items, not needing the 60 votes necessary, and unobtainable in the current Senate, to repeal the actual legislative bill.
This is not a defense of Paul Ryan and his establishment pals, but those are the rules. Just as three outs are needed to end an inning, not two outs. A straight repeal bill would be filibustered in the Senate and never pass.
Could President Trump use executive orders to dismantle Obamacare? Perhaps, but lawsuits will follow, thwarting each executive order, as is happening with Trump’s immigration orders. Eventually the Supreme Court would weigh in. After John Roberts twisted himself into a legal pretzel to find Obamacare constitutional, I wouldn’t bet on him having a change of heart if Trump starts swinging a wrecking ball at Obamacare.
So how can President Trump activate the cancer which is buried within Obamacare? It won’t be a cancer doctor, but close. How about a bone cruncher, an orthopedic surgeon by the name of Tom Price?
Most don’t remember how “the Secretary” is sprinkled generously throughout the Affordable Care Act. Dormant cancer cells waiting to be activated. For a good summary, read Philip Klein’s excellent piece from 2010 in The American Spectator. When the bill was signed into law, Kathleen Sebelius was “the Secretary” of Health and Human Services. Not so today. Now it’s Dr. Price.
Within the bill there are 2,500 references to “the Secretary”. 700 times the Secretary “shall” do something, 200 times the Secretary “may” do something, and 139 occasions when the “Secretary determines” what should be done.
These "shall" and "may" determinations cover things like what type of insurance coverage Americans are required to have, how insurance networks and exchanges are organized, how grant money is doled out, what the “essential health benefits” that every insurance policy must cover are.
Suppose the new Secretary determines that Americans “shall” only be required to have catastrophic insurance? Or no insurance at all? What if the “essential health benefits” are left to the discretion of the purchaser of the insurance policy? What if the Secretary “determines” that there will be no insurance mandates or penalties? Or that insurance “may” be sold across state lines?
The Secretary also has discretion over “pilot programs” and “demonstration projects” for controlling costs. These include wellness plans, information technology, quality measures, and national payment for Medicaid. Perhaps throw in tort reform and a rollback of many of the many more onerous regulations strangling the medical profession. The Secretary “may” implement these reforms.
In reality, the Secretary has the statutory power to infect Obamacare with the cancer of repeal and replace, metastasizing into so many aspects of the law that what emerges is a shadow of the original bill. Repeal and replace from within.
The downside is the finite tenure of a Republican Secretary of HHS. What Secretary Price “shall” implement can be undone in the future by another Secretary Sebelius. So what? Even if Congress could somehow repeal the entire law, a future Democrat Congress and President could resurrect it, or implement something worse. That’s the cyclical nature of politics but it’s not an excuse for inaction today.
Let Congress wrangle and debate over the current bill. If their three-part plan works as advertised, Secretary Price can watch from the sidelines. If it stalls, which is quite likely, the orthopedic surgeon can fire up his bone saw and gut Obamacare from within, creating the reform he and the President “shall determine” is best for America.