Is Trump’s Obamacare Executive Order Constitutional?

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Is Trump’s Obamacare Executive Order Constitutional?

By David Thornton  |  October 14, 2017, 10:30am 

There has been a lot of discussion about President Trump’s healthcare Executive Order. Most of the discussion centers around the likely effects of the order while little has been said about the constitutionality of Trump’s executive action. For a party that roundly condemned President Obama’s abuse of executive authority, a big question should be whether Trump has the legal authority to make the changes that he proposes.

The bottom line is that Trump’s Executive Order doesn’t actually make any changes to the Affordable Care Act. What it does do is to order cabinet secretaries to “consider proposing regulations or revising guidance, consistent with law.” In other words, Trump isn’t proposing changes to laws passed by Congress, he is considering changes to regulatory laws enacted by bureaucrats. These changes will be “considered” in three main areas.

First, the president wants to expand access to association health plans (AHPs). Health Affairs notes that these plans are more loosely regulated than traditional insurance plans. They are normally regulated by the states, but can be regulated by the federal government in the case of some national associations.   

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Last week, Donald Trump signed a new executive order facilitating more flexibility for consumers of health insurance. 

The order allows for more flexibility in purchasing insurance across state lines, and greater freedom both small businesses and groups of consumers in creating "association health plans" (AHPs). In theory, this will broaden access to the benefits currently enjoyed only by those with employment-based insurance, and other types of group insurance. 

The order paves the way for healthcare reforms long favored by Kentucky Senator Rand Paul who believes the reforms will help bring down healthcare costs. 

In an op-ed for Breitbart, Paul writes: 

Millions of Americans will be eligible to band together to demand less-expensive insurance. The 28 million individuals left behind by Obamacare will now be eligible for inexpensive insurance.