The Healthcare Executive Order (Or Memorandum…or whatever it is)

President Trump and Rand Paul have joined forces in order to…confuse everybody.  (Rand Paul may be confused himself)

I’ve got a couple different ideas about what’s going on with this most recent Executive Order from the White House and what it means moving forward.  One of those ideas involves the Flash, alternate universes, and a Rand Paul doppelganger.  Even though that unusual idea probably has more substance than anything you might read at InfoWars, I’ll choose to discuss my other ideas instead.

This all started two days ago when President Trump tweeted the following:

Unsurprisingly, many advocates for limited government and opponents of executive overreach (like myself) were dismayed to see a tweet so reminiscent of what we would see from the Obama days.  There are few phrases hated more by federalists and libertarians than “power of the pen”.  This is why what happened next was the last thing anybody expected:

Full Stop!!

Now, let me first state that I recognize not all Executive Orders are created equal and that issuing an Executive Order is not, in and of itself, necessarily an unconstitutional act, as much as I sometimes would like them to be.  However, when the stated purpose of issuing an Executive Order is that Congress is not acting…it’s usually an indication that what is about to be released is going to be an attempt to accomplish what should be done through the legislative process and is likely going to utilize a loophole, whether real or perceived, upon which the Executive Branch will attempt to use rules and regulations to alter or undermine legislative law.  Hence, the general perplexity of Senator Paul’s support of such an executive action.

While the jury is still out an what exactly Rand Paul is up to, I think I can begin to unravel a few things about what this Executive Order actually is and what, if anything, it actually accomplishes.

While the Executive Order is being sold as President Trump acting to reform Obamacare on his own, in response to the failure of Congress to act, it does nothing…I repeat…it does nothing to alter the Affordable Care Act.  This Order is essentially legal acrobatics, reaching back to laws from the 1970s, finding ways to re-introduce market forces into the health insurance market by using the portions of the market which the ACA does not actually touch.  Principally, it is an attempt to craft new rules and regulations for Association Health Plans with the goal of allowing small businesses to join together in providing insurance for their employees and to obtain policies from insurance companies across state lines.  The mechanism for accomplishing this, as worded in the Executive Order, is to simply request that federal agencies re-evaluate their current rules and regulations to determine if they can be altered to allow this to happen.  It does not effect the ACA, but attempts to create a mechanism to undermine the ACA’s attack on market forces, and try to allow an island of protection for some consumers as the ACA continues to unravel.

So, is this effectual and, more importantly, is this constitutional?

From what I can tell, this Executive Order would pass the muster of judicial review, but largely only because it is functionally nothing more than an official request that agencies investigate ways to alter their rules and regulations within the framework of pre-existing law with the hopes of accomplishing a determined goal.  The language of the current order would likely not be construed as unconstitutional because the specific process to accomplish the stated goal is purposefully vague. But, not only does this mean there is no guarantee the goal can even be accomplished, it also means there’s no guarantee possible alterations to rules and regulations would remain properly in the context of current law and each and every change could face the possibility of being challenged and any one alteration being successfully challenged could put the entire effort in jeopardy.

As for whether the Executive Order will be effective, the consensus I’m sensing is that it may provide some relief to small business employees if rules and regulations can be effectively tweaked, but that the processes involved will likely take upwards of a year to effectuate and, even after that, their changes wouldn’t go into effect until the open enrollment period for 2019.  Considering the speed at which the health insurance markets are spiraling downward under current law, my assessment is that anything this Executive Order might accomplish will probably arrive too late and be too little to have any meaningful impact.

But, all other considerations aside, this action by President Trump may be nothing more than a dog and pony show.

I went to to read the specific wording of the Healthcare Executive Order and…it wasn’t there.  At least, it wasn’t listed in the Executive Order section of the website.  I instead found it listed as a Presidential Memorandum.  Presidential Memorandum is a vague designation, notionally different then Executive Orders in that they generally only focus on delegating tasks or initiating regulatory processes and often don’t cite constitutional or statutory authority like an Executive Order would.  While Presidents have been known to interchange the use of Memorandum and Order (President Trump has demonstrated in the past he has no grasp of the intended difference), a Memorandum is generally considered to have much less impact and authority. Considering the title of the directive is “Presidential Executive Order…” it seems odd it would be officially listed as Presidential Memorandum and suggests either someone at the website has messed up, or the President, or his staff, is engaging in a little message  doctoring to make this directive appear to be more than it actually is.

If this exercise really is nothing more than a dog and pony show, it appears to be one involving a dog with a comb over and a pony with really curly hair.  Much remains to be seen, and I look forward with great interest to discovering why someone who once famously said he would “…repeal all previous executive orders” now has in his possession a shiny presidential pen.

-The Millennial Federalist



Categories: Executive Review

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