Academic journal article American Journal of Law & Medicine

Nobody Knew How Complicated: Constraining the President's Power to (Re)Shape Health Reform

Academic journal article American Journal of Law & Medicine

Nobody Knew How Complicated: Constraining the President's Power to (Re)Shape Health Reform

Article excerpt

I. INTRODUCTION

“I am not the first president to take up this cause,” President Obama said before a joint session of Congress, “but I am determined to be the last.”1 He won't be. And neither will President Trump. With a polarized Congress failing to refine, repeal, revise, or replace the Affordable Care Act (“ACA”), the executive branch has assumed an outsized role in shaping, and now reshaping, the contours of health reform. Beginning on inauguration day, President Trump has attempted an executive repeal of the ACA. In doing so, he has tested the limits of executive power. He has challenged the force of institutional and non-institutional constraints. And, ironically, he has helped boost public support for the ACA's central features.

The first two sections of this paper respectively consider the uses of the president's tools to advance and to subvert health reform. The presidential megaphone—the informal power of persuasion—has been central to the successful enactment of health reform legislation, notably including “Obamacare.” The century-long leadup to that historic legislation informs its structure, implementation challenges, and future options. In using the presidential megaphone to disparage the ACA and unsuccessfully rally Congress to repeal it, President Trump appears to have bolstered its legislative grounding.

In addition to a megaphone, the Resolute desk holds a landline and a pen. These formal tools of statutory implementation include the power to sign executive orders, oversee regulatory measures, and shape agency direction. President Trump has made extensive use of these tools to undermine the ACA's coverage protections. Through a scattershot of complex managerial, regulatory, and litigative actions, his administration continues to threaten, but has not yet destroyed, the individual insurance marketplaces. The threat comes not only from specific executive-branch actions, but also from the general uncertainty they sow in an endeavor that depends upon voluntary private business involvement.

The final two sections of this paper consider the constraining forces on this attempted executive repeal. President Trump has, in effect, shot holes in the ACA-constructed dike that protects the individual coverage pool. Thus far, the fingers plugging those holes, and the feet bracing the dike, belong to the states. These are not only blue fingers and feet. Key state decisions, particularly intrastate managerial and regulatory responses,2 have been distinctly bipartisan. In addition, Democratic-leaning states have instigated or intervened in several lawsuits,3 taking a historically atypical position that aims to bolster federal power and nationally uniform rules.

Another significant and interwoven check on the president's power arises from Americans' stories about their health care challenges and their beliefs about the role of the federal government. With this issue, the personal readily becomes the political. Although the ACA remains highly polarizing, it now polls more favorably than not,4 and central provisions enjoy strong, bipartisan support. This polling shift seems to have impacted campaign messaging in the 2018 elections. Furthermore, the results of that election evidence the expanding support for government-grounded coverage options.

“Now, I have to tell you it's an unbelievably complex subject,” President Trump said as Republican Congressmembers struggled unsuccessfully to coalesce around an ACA replacement plan. “Nobody knew health care could be so complicated.”5 If that were ever true, it isn't now. Previously arcane health policy ideas are commonly bandied about. Health care and the means to pay for it continue to engage the public, as evidenced by the issue's ongoing prominence in state and national campaigns. There is increasing support for the proposition that the government should ensure health care access for all citizens and should maintain legal protections for those with pre-existing conditions. …

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