Time and time again, then-Rep. Tom Price (R-GA) — who would become President Trump’s Health and Human Services secretary — told lawmakers at his January confirmation hearings that he would merely act as an “administrator” of the health care laws they passed.
“The good news for you, is that, as an administrator, if I am privileged to serve in that capacity, that I follow the policies adopted by the Congress of the United States and signed by the president,” Price told a persistent Sen. Maggie Hassan (D-NH), as she grilled him about what he thought about Obamacare’s Essential Health Benefits coverage of drug treatments. “So we look forward to working with you to make certain those kind of things are covered.”
Well, the first major test of that promise has arrived, and perhaps, not on the terms Price expected when he used the “administrator” rhetoric to ward off Democrats’ questions about his plans to dismantle the Affordable Care Act. With the failure of the Republican legislative effort to roll back Obamacare, he will be administering a law that he spent years in Congress seeking to undo.
“Tom Price is the kind of guy that you hire if you want to uproot the Affordable Care Act. He’s not the guy you want if you want to make it work,” Nicholas Bagley, a University of Michigan law professor who specializes in regulatory law, told TPM. “It will be interesting to see if he can shift roles and become an administrator, a competent, careful thoughtful administrator that he may not like but has to live with. Or whether, instead he remains steadfast in his ideological commitment to undoing the Affordable Care Act by any means possible.”
As Trump often does, he made that subtext text by promising over the weekend to try overhauling Obamacare again once the law “explodes.”
ObamaCare will explode and we will all get together and piece together a great healthcare plan for THE PEOPLE. Do not worry!
— Donald J. Trump (@realDonaldTrump) March 25, 2017
The political wisdom of going such a route is questionable, but then again, political wisdom hasn’t gotten in Trump’s way in the past.
“There’s a statute of limitations for how long you can blame the other guy for things that could go bad on your watch,” Bagley said. “They’re really going to face a tension between the desire to allow the ACA to crater and to blame it on the Democrats, [or to] follow the recognition that politically it makes a whole lot of sense to try to make the Affordable Care Act work as well as possible.”
Republicans have plenty of experience sabotaging Obamacare, having targeted the law with numerous costly lawsuits and undermined it with hidden legislative provisions. But the political dynamics have shifted with the GOP taking full control of the government. Such efforts can no longer be framed as partisan warfare but would be self-inflicted political wounds that also harm the general public. That shift became even more pronounced with the failure of a Republican majority in the House to settle on a replacement plan.
Even Obamacare’s critics admit that any mess made under the Trump administration will be his to clean up.
“When you’re the president, you get blamed for whatever happens, even if it’s not your fault. … Even though the law is the one that Obama passed, Chuck Schumer will find a way to blame Trump and enough people dislike him that it will probably stick,” said Joshua Blackman, an associate professor of law at the South Texas College of Law in Houston and the author of several books about Obamacare.
“From my legal perspective the important question is, is this something within the law’s structure or is Trump actively ignoring the law and failing to faithfully execute it?” he said.
The Trump administration so far has sent mixed signals. On one hand he signed a vague executive order telling his agencies to “waive, defer, grant exemptions from, or delay” various provisions in the law. His administration also scaled back the outreach during the last few days of open enrollment, prompting a rare public rebuke from the insurance industry. On the other hand, the initial rule-making proposals under Secretary Price — while not the best for consumers — could be seen as a limited olive branch to insurers as the administration devised its long-term approach.
“Those are basically checking the boxes on an insurer company wish list,” said Timothy Jost, a health law specialist at the Washington and Lee University School of Law. “If those move ahead, insurers will see those as a sign of good faith.”
But if Trump and Price were feeling nihilistic, the path for them to destroy the individual marketplaces and send the law into a death spiral is fairly clear, with a few big inflection points in the months to come.
The first and probably biggest is the lawsuit House Republicans launched against the Obama administration in 2014 for using the Treasury Department funds to pay ACA-mandated subsidies to insurers. Republicans argue that the payments are illegal because they weren’t appropriated by Congress and the case, now called House v. Price, is in a holding pattern until May when the parties will update the court on where they stand. If Trump’s Justice Department drops its defense of the payments and ends the subsidies to insurers, “That would cause a blow up,” said Gary Claxton, a vice president of the Kaiser Family Foundation. Insurers would either jack up premiums or leave the marketplace entirely.
There are other ACA-related funding questions HHS will have to address, one concerning the law’s reinsurance program — which conservatives claim to be a $5 billion raid of the Treasury Department — as well as the lawsuits brought by insurers for money owed to them through Obamacare’s risk corridors program, which was gummed up by GOP legislators in 2014.
Another major fork in the road for the administration is how it approaches the law’s individual mandate. The executive order Trump signed in January suggested his HHS would attempt to water it down, but there hasn’t been much communication about how the vague order would be implemented, and clarifying that would signal whether Price intends to keep the marketplaces stable.
“The other thing they really need to do,” Jost said, “is communicate clearly that the individual mandate is still the law of the land, as far as anybody is confused about that, they need to clear up the confusion.”
The coming rounds of regulatory proposals pushed by Price will be closely watched, as his administrative changes to the law had been framed as “phase 2” of the GOP replacement effort. It’s expected that Price will roll back Obamacare’s contraceptive coverage protection, which would not put the marketplaces at existential risk per se, but at least would ignite a political fight and cost numerous women their contraceptive coverage.
Price could also tinker around the law’s Essential Health Benefits, which could be a sign that Republicans will seek to work within the law’s constrains to leave a conservative mark.
“In administrating their program, I would certainly expect the administration, if they think they’re going to be living with a program for a few years, to give a little bit more flexibility in benefits,” Claxton said.
There are less obvious ways that the administration could affect the Affordable Care Act’s success, and it won’t be immediately clear if any downsides to those decisions were the result of incompetence or malicious intent.
“Administering the ACA requires dozens of on-the-ground decisions every day to be made, to make certain that the whole complex system works well,” Bagley said. Those decisions include efforts to maintain the Healthcare.gov website, to keep the back-end infrastructure functioning, to field questions from insurers and to update rules according to market fluctuations.
“Even if the administration is committed to making the Affordable Care Act work as well as it can, its competency really matters,” Bagley said. “There are certainly talented committed staffers at HHS and the [Centers for Medicare and Medicaid Services] who could make it work. But the direction to do everything you can to make sure the individual insurance markets work as well as possible has to come from the top, and right now we don’t know what the top happens to think about any of these questions.”