Shortly after his January 20 inauguration, President Trump signed an Executive Order (promptly published by Politico) titled, “Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Appeal.” It’s most notable for what it doesn’t do – i.e., compel any agency to take, or to refrain from taking, any particular ACA enforcement action. It tells enforcement agencies to exercise their lawful discretion –
to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.
And, “[t]o the extent that carrying out the directives in this order would require revision of regulations issued through notice-and-comment rulemaking, the heads of agencies shall comply with the Administrative Procedure Act ….” For ACA opponents, the problem is that the conditions counteract the commands.
So, for example, changing the employer mandate tax assessment and collection rules would require a new rulemaking process. But the Obama Administration waived, delayed, relaxed and emphasized, or not, various parts of the employer mandate and employer reporting rules through what it called “sub-regulatory guidance,” consisting of, among other things, IRS Notices and periodically updated Frequently Asked Questions (FAQ) web page postings.
Perhaps President Trump hopes by this Order to induce current DOL, IRS and HHS staff to delay and relax already overdue ACA enforcement efforts. But this Order does not command any waiver, delay, relaxation or other, particular, sub-regulatory guidance, which means, practically speaking, that the new President is asking the former President’s appointees to cooperate to undo years of their work. We expect few volunteers.
If that’s a good guess, then the new Administration will need legislation, or personnel change, or both, to effect significant policy change.
Update: The official version of Executive Order 13765 is here.