Donald Trump’s Terrible Executive Order on Health Care

The false stories that congressional Republicans drew of Obamacare fed partisan demands for President Trump to savage it.

Photograph by Ron Sachs / dpa / AP

President Donald Trump is now trying to break the health-care system all by himself, although he has more help than he might acknowledge. On Thursday, Trump launched an assault on Obamacare from two angles. First, the White House staged a signing ceremony for an executive order designed to push people into what are known, accurately, as “junk” insurance plans—the kind, common before the passage of the Affordable Care Act, that never seem to cover people when they are actually sick and that extort and abandon those with preëxisting conditions. Trump, in his remarks at the ceremony, referred to this choice as “fleeing the failing Obamacare plans.” And then, a few hours later, he did more to make Obamacare fail, by saying that he would withhold the cost-sharing subsidies that the government currently pays insurance companies in order to reduce deductibles and co-pays for many low-income people. Companies will undoubtedly respond by leaving the Obamacare exchanges, where such plans are now sold. Both moves had one thing in common: they recklessly target vulnerable Americans. But in doing so, they will, as with so many of Trump’s moves, increase risks for everyone.

Although Trump used the executive-order signing to goad his fellow Republicans—“We’re going to also pressure Congress very strongly to finish the repeal and the replace”—they did much to make this day possible. Trump claimed that he had no choice but to defund the subsidies because paying them went against the will of Congress. This is the argument in a lawsuit, instigated by House Republicans, that is making its way through the federal courts. Basically, those Republicans argue that, although the plain language of the A.C.A. describes and authorizes the payment of subsidies, Congress should be allowed to vote on actually releasing the money every year. In effect, Congress promised the money when it passed the A.C.A., but now it wants the right to hold that money hostage on a regular basis. The case relies on a highly technical reading of the legislative fine print; nevertheless, the congressional challengers won a round in the lower courts, though that had been stayed pending an appeal—one that, on Thursday, the Trump Administration apparently decided to drop. (Attorney General Jeff Sessions had earlier said that he agreed with the House Republicans.) More than that, it is, at best, a technical ambiguity that any congressional majority interested in something other than utter chaos in the insurance markets could easily fix. Such a majority does not exist right now.

Indeed, the opposite is the case: the false stories that congressional Republicans drew of Obamacare—a system that, whatever its flaws, has increased the number of Americans with insurance by some twenty million, and made that coverage more reliable for many times that number— fed partisan demands for Trump to savage it. The Republican Party made a destructive promise that Trump, as its candidate, has been eager to keep. It may be the only thing that the Party can rely on him for, and, although some individual Republicans, such as Ileana Ros-Lehtinen, of Florida—who, not incidentally, is retiring at the end of this term—worried about the effect on their constituents, Party leaders were quick with their gratitude. Senate Majority Leader Mitch McConnell tweeted, “As #obamacare continues to fail Americans, I’m pleased @POTUS is promoting affordable policies to better meet the needs of families.” And the Speaker of the House, Paul Ryan, said that Trump’s decision to end cost-sharing subsidies was a “monumental affirmation of Congress’s authority.” That may seem like an odd way to describe a move that was also framed as a response to Congress’s failure to repeal the A.C.A., and which was a flanking attempt to undermine a major piece of legislation. But, as a shorthand for the affirmation of the congressional Republicans’ ideological authority, it was not far wrong.

These two moves are not the only sabotage attempts that the Trump Administration has been engaged in. It has rewritten rules to allow plans to stop covering many forms of birth control. It has made disabling cuts to programs that help people sign up for Obamacare, and made enrollment, across the board, harder—more of a labyrinth. Information about plans that people might be able to afford has been, effectively, hidden. Perhaps this is, finally, an example of Trump bringing his business expertise to Washington: the knowledge that bad marketing can cripple a good project.

But the most Trumpian aspect of the executive order is that it makes life easier for con men. It does so by allowing the sale of insurance plans that do not meet basic standards through “associations,” which might be made up of employers, interest groups, or just entrepreneurial opportunists—the exact rules still have to be written. Obamacare plans offer certain defined essential services, such as preventive and obstetric care and hospitalization, that an insurance plan has to cover, and cover substantially, to call itself an insurance plan. In other words, the A.C.A. made it harder for employers or insurers to claim that they were covering people if, when it counted, they really weren’t. (Such a bait and switch was common in the pre-Obamacare days; many people who went bankrupt after a medical emergency actually had insurance plans.) The executive order would create a sham market alongside the real one. One concern is that young, healthy people will be drawn to association plans because they don’t “need” comprehensive coverage, and are making what they believe is a rational calculation, albeit one that will drive up premiums in the Obamacare market, by making that pool of people, on average, sicker and older. (Paul Ryan, who has complained that it is unfair that healthy people help pay for sick people—the premise of insurance—is an association-plan enthusiast.)

But health-care needs have a way of changing quickly—we might each be separated from one category or the other by a single accident, diagnosis, or pregnancy. And some people and businesses won’t so much be making a choice as settling for what that they can afford in the short term: the plan, good or not, with the lowest sticker price. And, again depending on the specific rules that the Administration comes up with, people with preëxisting conditions will likely be more exposed to rate hikes—indeed, their co-workers might be, too, since an association would be able to set higher rates for a single business with a large number of people regarded as risks, whether because they are older or more likely to have children. (This means that, as a bonus, the executive order may encourage employment discrimination.) Another disorienting aspect is that an association would be able to sell its plans across state lines, in a way that would disregard the insurance regulations in the state in which the insured person lives. This would set up, effectively, a cross-country race to the bottom.

Another aspect of the executive order that is a setup for an insurance con is its expanded definition of “temporary” plans. Basically, these are policies, exempt from many regulations (someone can be dropped upon becoming sick, for example, or denied coverage for preëxisting conditions) that are designed for people who are between other plans—perhaps because of a job change—to buy in a pinch. But they also represent a loophole, which the Obama Administration tried to close, by defining “temporary” as no more than three months. Trump’s order extends it to a year. This is in keeping with an economy in which every little foothold that working families have seems temporary—it helps to make flimsiness a permanent state.

In presenting the plan at the executive-order signing, Trump did his best impression of a flim-flam man—that is to say, he was entirely in character. The guests included members of his Administration, some small-business representatives, and Senator Rand Paul, who believed that the Senate’s last attempt to break Obamacare was not radical enough. Trump didn’t have many details other than the promise that a “nightmare” was over, that millions of people would be “very happy,” and that the whole thing would produce better plans at no expense whatsoever to the government. “That’s not too bad, right?” he said.

As Trump started to walk out of the room, though, Vice-President Mike Pence suddenly looked anxious. He hurried after his departing boss with an outstretched arm. “Mr. President, you need to sign it!” Pence said. “Oh,” Trump said, to laughter, and then added, “I’m only signing it because it costs nothing.” Not for him, maybe, unless our political marketplace comes up with some way to measure the cost, to a President and his Party, of presiding over a disaster.