Trump Teases Further on Executive Order on Pre-Existing Conditions: It's a "Double Safety Net" and a "Second Platform."

I think the President is hinting, even more strongly, at the executive order proposed in the Cato Amicus brief.

|The Volokh Conspiracy |

On Monday, President Trump held a press conference. At 31:30, a reporter asked him about his planned executive order on pre-existing conditions. Why was it necessary, the reporter asked, given the fact that the ACA already requires insurers to cover people with pre-existing conditions. Trump's response is barely coherent. He states, over and over again, that the individual mandate was "terminated." It wasn't. The penalty was reduced to $0. But at 33:05, President Trump finally meanders to his answer.

I'll transcribe it here, as best as I can:

And pre-exiting conditions, Republicans are 100% there. And I'll be issuing at some point in the not-too-distant future a very strong statement on that, probably in the form of an executive order.

At that point, the reporter asked again why he needed an executive order if the ACA already includes that requirement. Trump responds:

Just a double-safety net, and just to let people know that the Republicans are totally strongly in favor of pre-existing condition, taking care of people with pre-existing conditions. It's a signal to people, it's a second platform. We have pre-existing conditions will be taken care of 100% by Republicans and the Republican party. I think it's a very–I actually think it's a very important statement.

The media continues to completely miss what is going on here. (Just like they completely botched the President's four executive actions–the New York Times is still saying they might be "unconstitutional.")

What is going on here? I blogged about the plan over the weekend. I'll repeat my take here.

Ilya Shapiro and I filed the Cato Institute's amicus brief in California v. Texas. We proposed that the Trump administration could require, by executive action, insurers on the ACA exchange to comply with guaranteed issue and community rating. But why would such an executive action be needed if the ACA is in place? Well, the ACA is currently being challenged. And perhaps one factor that could aid the Court's deliberations would be an assurance that people with pre-existing protections could still obtain coverage on the exchanges, even if guaranteed issue and community rating (GICR) were found to be inseverable.

Here is an excerpt from our brief. Note the last emphasized sentence in Footnote 12.

The analysis for individual market, on-exchange policies is different. Hurley and Nantz are not eligible for subsidies. Declarations, supra. But they could still purchase an unsubsidized plan on the exchanges. Halting GICR with respect to policies sold on the exchanges would be an unnecessarily overbroad remedy. So long as the plaintiffs can purchase off-market non-compliant plans, or none at all, their injuries will be remedied. Plaintiffs cannot demand a greater remedy to alter all policies offered on government exchanges. Moreover, people who seek to buy a government-sponsored product on a government exchange cannot complain about cumbersome regulations. [FN 12] Courts need go no further than issue a declaration with respect to individual market, off-exchange policies. "[T]he judicial power is, fundamentally, the power to render judgments in individual cases." Murphy, 138 S. Ct. at 1485 (Thomas, J., concurring). No more, and no less. Hurley and Nantz, meanwhile, and all those who object to being forced to purchase unwanted policies, will have other options.

[FN12]: This narrow remedy would address concerns raised by the Federal Respondents about creating a "potentially unstable insurance market." See Brief for the Federal Respondents at 44–45. The executive branch could also require insurance providers on the exchanges to comply with the ACA's GICR provisions, regardless of the outcome of this litigation.

Trump described this executive order as providing a "double safety net" and a "second platform." These words, through the filter of Trump, sound very close to what Cato proposed. Even if the Supreme Court declares the ACA's GICR mandate unconstitutional, insurers on the ACA exchanges would still be required to comply with the executive order's GICR mandate. That is the "double safety net." And the "second platform" would be an exchange where people could buy policies that comply with GICR.

I wouldn't be surprised if Acting SG Wall refers to this executive action as a "safety net." This model is designed to put the Justices at ease.

We'll see if I'm right.

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  1. Republicans have been trying to do away with “Obama Care” since before Trump. During the last three plus years, the Republicans, led by Trump, have tried to repeal it and have tried to get it overturned through the courts. No great beautiful replacement insurance plans have been proposed.

    Today, the only thing, as far as I know, which guarantees that insured Americans have guaranteed coverage despite pre-existing conditions is “Obama Care”. If “Obama Care” falls, either legislatively or by the courts, the protections fall with “Obamacare”. Lots of Republicans, including Trump and the Attorney General seem to claim that if “Obama Care” dies, and pre-existing conditions protections along with it, that the Republicans will, by some force of magic, perhaps, immediately guarantee the deleted “Obama Care” protections.

    Don’t believe it. Without an enforced mandate, insurance guaranteeing coverage for pre-existing conditions won’t happen; it is economically impossible.

    If one thinks protection from discrimination base on pre-existing conditions, a vote to overturn “Obama Care” should be considered a vote to eliminate pre-existing conditions protections (because that is what it does)

    A court decion in the absence of enacted legislation guaranteeing coverage for pre-existing conditions is a court decision eliminating those protections.

    1. Without an enforced mandate, insurance guaranteeing coverage for pre-existing conditions won’t happen; it is economically impossible.

      You said it. The only way this thing is economically possible is if the government passes a law ordering it to be economically possible.

      1. You spelled “makes it economically possible” wrong…

      2. Correct. Without the mandate people can acquire insurance when they need it.

        The economic logic then dictates that insurers require either a waiting period or prior coverage which means that preexisting condition coverage no longer exists.

        A third option is for insurers to add the cost of providing preexisting coverage without a mandate to everyone’s premiums.

        Republicans have made a continuing effort to sabotage the ACA. Initially they did so by states not participating in the exchanges. Trump has attempted to erase President Obama from history (he remains a Birther for sure).

        What have they done, one must ask, to benefit the average individual who is not covered through their employer? After I was incapacitated (I was shot) my COBRA in NYC cost over $4,000/month.

        55 countries have lower infant mortality rates than the US (including Bosnia). 42 countries have higher life expectancy. Yet I would bet that we spend more per capita on health care than any of those with better outcomes.

        I am a fierce capitalist but we are doing something wrong.

        The ACA is not perfect but 10% of the energy spent on obliterating it would fix most of the problems.

  2. As I wrote before.
    A protection based on a law (that passed overwhelmingly in both houses of Congress), vs protection based on an executive order that can be withdrawn AT ANY POINT . . . how on earth can a law professor argue that they are equivalent in any way? Or argue that a court would be persuaded by any protection so ephemeral? Do you really think Wall would make such an idiotic argument?

    Josh, if you have actual persuasive arguments, please post them.

    1. He posted because he saw a chance to quote himself, whether it was on point or not, whether it was persuasive or not.

      1. Ding ding ding!

    2. A protection based on a law (that passed overwhelmingly in both houses of Congress)

      You must not be talking about the ACA. I’m old enough to remember how that one passed the House on a fully-partisan vote with a razor-thin margin after Pelosi finally whittled down the D defectors to a few dozen, and passed the Senate in draft form on a straight party-line vote and then couldn’t be amended because the Ds had lost their supermajority.

      1. True, but Republicans certainly would have voted for it had it been proposed by a Republican President.

        1. Republicans certainly would have voted for it had it been proposed by a Republican President.

          That’s a rather massive check to write. If you have anything to back it other than the old tired “look, this Republican over here said something 18 years ago that sounds conceptually similar to a cherry-picked piece of the sprawling monstrosity that is the ACA” style of argument, I’m happy to read it.

          1. Their beef was with the individual mandate which was the heart of the Heritage plan endorsed by the majority of Republican Senators.

            1. the heart of the Heritage plan endorsed by the majority of Republican Senators.

              I admit that’s a cleverer-than-normal description of the infamous Heritage white paper. How are you connecting those dots exactly?

    3. “Passed overwhelmingly”?

      That’s one way to spin it.

    4. “could be withdrawn at any point” you mean like DACA?

      I think a pre existing conditions bill would pass Congress with an overwhelming majority. The reason it has not passed before is that someone wanted to hold out for much more.

      The two most touted benefits of Obamacare are the pre existing condition mandate and the ability of a person to remain on those parents insurance longer. Either of those could have been passed easily in a simpler bill and have been proposed many times, but there were other things each side wanted that the other side would not agree to. That led to call for “Health Care Reform” because if you took care of the easy issues no one would agree to compromise on the hard issues.

      There is a similar situation regarding DACA, a simple bill could probably pass and Trump has even said he wanted to do something, but enough members of Congress always want “Comprehensive Immigration Reform” which means different things to different people and includes things neither side will compromise.

      1. I think a pre existing conditions bill would pass Congress with an overwhelming majority.

        I doubt it, but what does it say when something that enjoys great popularity can’t get through Congress?

        There is a similar situation regarding DACA, a simple bill could probably pass and Trump has even said he wanted to do something, but enough members of Congress always want “Comprehensive Immigration Reform”

        Let’s be clear.

        Democrats, and some Republicans, have tried to get a clean DREAM Act passed several times, but it has been filibustered and otherwise opposed by most Republicans, and of course Trump is against it also.

  3. “He states, over and over again, that the individual mandate was “terminated.” It wasn’t. The penalty was reduced to $0.”

    I have seen, over and over, supposedly smart law professors argue exactly that reducing the penalty to $0 terminated the mandate. In fact, I’d swear I’ve seen them do it in these very pages…

    1. Of course the mandate was terminated.

      It’s idiocy to suggest otherwise.

      1. When you’re so hostile to a President you attack him for agreeing with your co-blogger… that’s Blackman.

        1. Blackman has an agenda that is not shared even by his fellows within the Conspiracy who think the ACA his Health Control.

        2. I don’t have the impression that Blackman is hostile to Trump. Seems to be a fan, in fact.

          1. Prof. Blackman is insufficiently deferential to Pres. Trump? Not just that, but “hostile?”

            I love this blog.

            Mainly because I like to see conservatives lose political and legal arguments.

          2. Blackman as Trump fan is a generous understatement. Recently he test-marketed a Profiles in Courage shtick over Trump’s “resolute bravery” in sticking with the Kavanaugh’s nomination. The first suggestion of this was merely dubious; by the third mention in as many days we reached bootlicking territory. My impression? Josh wants to be the Bill Barr of some future GOP administration. It may be too late with Trump, but the hard work starts now…..

    2. Listen, you fucking moron, Josh is emphasizing the enduring nature of the “mandate” because he wants to support the whole argument for invalidating ACA in its entirety, which is a goal he’s trying to promote in the OP by claiming Trump is engage in some n-dimensional chess by addressing a concern the Supreme Court might have in accepting the Fifth Circuit (and Trump administration’s) ludicrous argument.

  4. Can we just get single payer health care already? There are so many issues that go away if we do, this being one of them. We also lose the dispute over religious exemptions for employers who don’t want to pay for birth control.

    1. Yup, we lose a lot of liberty, and all become subject to a monopoly with guns for our health care. What’s not to like?

      1. Truly, the rest of the First World are under authoritarian nightmares, every single one.

        Your melodrama doesn’t really track.

        1. They are. You’re just fine with living under authoritarian government, so long as you like the people in authority.

          1. When your definition of authoritarian is so ridiculously broad it encompasses the entire First World other than the US, it’s a reflection of your extremism and not reality.

            1. When your definition os single payer is so broad as to encompass all of (the rest of) the first world, it’s a reflection of your wants, not reality.

              Might as well join Bernie in calling Scandinavia Democratic Socialist.

              1. Under Brett’s definition, Scandinavia is all dictatorships I guess.

          2. Brett, I guarantee you that you would have no problem with a right-wing authoritarian government.

            1. What do you mean “would?”

      2. I haven’t noticed that feeling of living under fascism for having a monopoly with guns on my utilities, including the fact that the city requires that I have utilities. Or public highways. Or air traffic controllers.

        If you want to argue that any or all of those things would be better done privately, make that argument. But the claim that a government monopoly on a particular service is despotic is just silly.

        And in the case of health care, it’s not even a monopoly since it’s single *payer*, not single *provider*.

        1. “He who pays the piper calls the tune.”

          1. I just don’t see how people survive living under the tyranny of government fire departments, or public libraries, or public parks, or anything else the government does to make life better for people. This is bound to lead to gulags and gas chambers, there’s no getting around it.

            Come to think of it, Leonard Piekoff basically made that argument in his book, The Ominous Parallels.

            1. LA plans to shut off those utilities for disobeying its diktat for unrelated reasons. Is that authoritarian enough for you?

              1. I don’t understand how some of you guys ever get past the issues of stop signs, center lines, traffic lights, and parking restrictions.

              2. That I disagree with a particular regulatory decision is not a reason to abolish government utilities altogether, any more than we abolish parents because parents sometimes make mistakes. Instead, we fix the mistakes, and take such steps as we can to minimize or prevent future mistakes.

              3. But your dictatorship-via-hypothetical proves way too much. It’s unlimited in fact – allowing any government discretion suddenly turns a country into a dictatorship.

      3. What fucking liberty do you lose when poor people can afford healthcare?

        1. We’re not talking about enabling the poor to afford healthcare. We’re talking about forcing other people to pay for it.

          That’s not remotely the same thing as enabling them to afford it, and it certainly deprives the people so forced of liberty.

          1. Paying pennies a week so none of your fellow countrymen go broke or homeless or die from treatable illness deprives you of nothing but pennies a week. You’re a fucking ghoul.

            1. “none of your fellow countrymen go broke or homeless ”

              Bet that will still happen even with single payor.

            2. Paying pennies a week so none of your fellow countrymen go broke or homeless or die from treatable illness

              How many “pennies a week” would it really take to accomplish that? Please show your work.

              1. They’ll be pennies from heaven. Unlimited. Like taxing the rich to pay for everything. Unlimited.

              2. I don’t know about pennies a week. I do know that Germany spends 10% of its budget on health care and provides everyone with full coverage; we spend 16% of our budget on health care and don’t.

                And yes, there are obvious differences between the US and Germany; I’m just responding to the point about how much would it cost.

              3. That the US has the most grotesquely inefficient way of funding healthcare is too obvious to contest. Rube Goldberg couldn’t design a more farcical mess. The question has never been whether there’s a better answer, but how we could ever transition to an entirely different system.

                1. That the US has the most grotesquely inefficient way of funding healthcare is too obvious to contest.

                  I fully agree that a system in which the party consuming goods or services is not the party responsible for payment will generate a raft of “inefficiencies.” The ACA did little to nothing to improve that landscape, and arguably even made it worse.

                  But that’s a fundamentally different topic than OP’s “just pennies a week!” jingle.

                  1. Pennies a week is a bit slogantastic, but there is no question that single payer would save a lot of money compared to the ACA and the system we had before that.

                    No middle men.

                    1. but there is no question that single payer would save a lot of money compared to the ACA and the system we had before that.

                      So would catastrophic coverage plans, with the additional benefit that this thing we call “insurance” would actually work a lot more like it.

                      No middle men.

                      Your preferred middle man, perhaps. But I’m not sure what else you would call that governmental body that unilaterally decides who is approved for what, when, and for how much. Single-payer isn’t just a magical piggy bank in the sky.

                    2. Catastrophic coverage plans don’t do prevention. That’s still going to be quite expensive for a lot of people.
                      It’s like you don’t want everyone to get affordable health care.

                      Right now we have individuals, health care providers, insurance companies, government, and employers.
                      I suppose only cutting out 2 of those wouldn’t be eliminating all the middle men. But I note you do not deny it’d be more efficient than what we have no or had in the past.

                      Hey – what do you call a private body that makes life and death decisions and is required to base their decisions only on maximizing profit?

                    3. It’s like you don’t want everyone to get affordable health care.

                      How poignant. In the real world, there’s no such thing as everyone getting as much as they want of a finite resource at a price that suits them. People can and do disagree on what variable(s) in the equation should give, but something must.

                    4. If you’re advocating for catastrophic plans, you want a system wherein people are not covered by insurance.

                      That exclusion from the market is a screwed up distribution for what can be life-or-death resources.

                      Why do you like such a distribution? Bare invocations of economic liberty won’t answer the mail on this one.

                    5. If you’re advocating for catastrophic plans, you want a system wherein people are not covered by insurance.

                      Reread that sentence a few times. The only way it can possibly make sense is if you have your own special definitions of “covered” and/or “insurance.”

                      We’ll need to get those on the table if you actually want me to kick the football — er, I mean, actually want to discuss this.

          2. What about taxes, Brett? By that definition seems to me that every country that levies a tax is an authoritarian horror.

            1. We live in a horrible world, Sarcastro. That’s no excuse to make it more horrible.

              1. Do disaffected clingers recognize that their positions have collapsed in modern society and that their defeat in the culture war is assured?

              2. So all countries with taxes are, to you, authoritarian?

                Because that’s rather means that your cries about the ACA is like Grandpa Simpson seeing death everywhere.

              3. But that is exactly what your advocating. My liberty is more important than your health! And don’t forget it.

              4. Arguably we live in a horrible world because of people like you who are proudly selfish and think stuff matters more than life (as you have admitted elsewhere).

          3. We’re talking about forcing other people to pay for it.

            Do you understand how insurance works?

            1. Or roads? Or schools? Or stop signs? Or street lights?

              Or modern, decent society in general?

              Anti-social right-wingers are among my favorite culture war casualties.

            2. I’m pretty sure you understand how insurance works, but your comment implies otherwise.

              “Forcing other people to pay for it” is most definitely NOT how insurance works, both as a mathematical and moral matter. Mathematically, you pay for the portion of risk that you add to a pool, and insurance spreads the risk across the pool such that each person only pays their portion of the risk rather than take the full cost of losses in the unlikely event the insured against outcome obtains.

              So you buy insurance when you can afford the average cost of a risk, but cannot afford the entire cost of a risk if you’re the unlucky one to be hit. I have half a million dollars of life insurance that expires at age 65, so that my kids get their college paid for if I die early – because I can afford the relatively small cost of the average risk but don’t want to excessively burden my kids starting career choices if I get unlucky – Other people make the same bet, and we know that some small fraction of us will draw the short straw, but we each individually value the guaranteed small loss of paying for insurance to prevent the unlikely total loss of death.

              So mathematically, insurance means you only ever pay for your average-self, rather than your lucky/unlucky-self.

              Morally this is still different, in that forcing people into such a shared risk carries with it moral hazard. Setting aside that all government actions devolve to a gun pointed at your head, a person who knows they can involuntarily include people into their risk pool is able to assume higher risks by shifting the costs onto those other people.

      4. Not having your home foreclosed upon because of medical debt would be something nice I think.

        1. Nope, that’s tyranny. Allowing people to lose their homes due to medical debt increases their liberty since they’re no longer shackled to the tyranny of mortgage payments and property taxes, or caged in by walls and roofs and such.

    2. Single payer is a red herring. Your concern is coverage, not granting a government monopoly. You probably hate monopolies, right? Most who want single payer do.

      Anyway, it’s really an argument to cut costs through price controls. Imagine how well price controls on new iPhones or X-Boxes would do to drive innovation in those things!

      1. You’re correct that I’m advocating single payer, not single provider. And I don’t see how it really does anything about innovation since providing health care and research and development are separate things entirely.

      2. Single payer is a monopoly the same way your state DMV is a monopoly.

        1. Comparisons to the DMV are so reassuring.

          1. …Are you arguing we privatize the DMV as part of our struggle against tyranny?

            1. ” …Are you arguing we privatize the DMV as part of our struggle against tyranny? ”

              It could happen.

              I worked for a year or so with a new associate who contended — and, it appeared, believed — that drivers’ licenses and state-required vehicle inspections were intolerable, that all roads should be private, and that the state could not criminalize drunken driving until the moment a bumper struck a pedestrian.

              A few years after he left the firm, his name came up while I was representing the Libertarian Party. The Libertarians — as impractical, inefficient, unruly, and difficult a bunch as one could find outside an institution for the criminally insane — said he had volunteered for some legal work but that after a brief period they instructed him never to call them again.

              Maybe don’t rely on any outer limit with respect to hatred of government.

            2. The DMV is a rent seeking nightmare maze for most people, having health insurance be ran like a DMV would be very bad.

              1. Bob is work-shopping his act for Open Mic Night at the Chuckle Hut. You should hear his bits on airline food.

                1. Muttering bitterly and inconsequentially about ‘this damnable modern society’ and ‘all of this damned progress’ is the natural role of some people. Not much is funny about it.

      3. Basically every healthcare system in the world other than the US regulates prices, including those that lean heavily on private insurance like Switzerland and those that tend to strongly libertarian economic policy like Singapore.

        The comparison to iPhones and XBoxes is nonsense, and the current system in the US is a poster child as an example of when markets (which, to be clear, I’m usually a fan of) don’t work. It’s impossible for a consumer to discover in advance what many medical procedures, even simple ones, will cost because there are so many layers of disintermediation between the provider and the consumer. Heck, it’s nearly impossible for a consumer to even verify in advance if all the parties involved in a particular procedure will be covered by their insurance. Health care is definitely not an area of US exceptionalism: we spend significantly more money than any other country and don’t get particularly better results in terms of either health outcomes or satisfaction. It’s true that we’re to some extent subsidizing the world’s innovation in health care, but I’m not sure that that’s a great goal as a matter of policy.

  5. We have pre-existing conditions will be taken care of 100% by Republicans and the Republican party.

    I think this is the nut sentence.

    This is not a policy proposal, it’s a partisan hand-waiving.

    1. Yep, it’s a marketing ploy. “Co-STAN-za!”

  6. Seriously, it’s like we have John Blutarsky for President.

    1. We could probably map the cast of Animal House to the Admin.

      1. Yeah, but casting Bluto as Trump effs up the fanfic from the getgo.
        Dean Wormer? Too smart for Trump, but better. Carmine DePasto? Too successful, but maybe the best fit overall.

    2. Bluto got Mandy Pepperidge. He wouldn’t have given Melania a second look.

      1. Mandy Pepperidge=Hope Hicks

    3. You mean Niedermayer or Marmalard.

  7. “I wouldn’t be surprised if Acting SG Wall refers to this executive action as a “safety net.” This model is designed to put the Justices at ease.”

    Yes, we all understand “pretext.” Although I’ll guess it’s possible that, in the absence of the ACA, an EO ordering pre-existing conditions be covered results in no person being denied coverage. At the same time, policies for people with pre-existing conditions will be horribly expensive and likely inaccessible to most. So Cato’s and Trump’s Double Safety Net is really just a handful of strings tied together.

    1. At the same time, policies for people with pre-existing conditions will be horribly expensive and likely inaccessible to most.

      Exactly. Promising to provide coverage even to those with pre-existing conditions is meaningless without pricing guarantees.

      The usual liars will ignore that.

      1. Why worry about what the “usual liars” will do, think, or say?

        Enacting progress against their preferences is what counts.

  8. I said all along that Trump wasn’t a conservative, just pragmatic. This made him functionally more conservative than many Republicans, because RINOs would actively avoid doing conservative things, even if it cost them politically. Trump would just go with what looked politically smart.

    Here we’re seeing the downside of that: Where not doing the conservative thing looks politically smart, Trump isn’t going to be a conservative.

    Still better than an ideological leftist. But he’s no conservative.

    1. “. . . just pragmatic – for HIS and ONLY HIS benefit.”

      He doesn’t give a fuck about mouth-breathers, wives, Justice, the Constitution, religion, freedom, etc.

      He’ll use any means to obtain his personal goals.

      And you let him….

      1. Yeah, that’s about right. And I let him, because he wouldn’t go out of his way to screw over the people whose votes he needed.

        “It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest.” How is this any different?

        1. because he wouldn’t go out of his way to screw over the people whose votes he needed.

          What kind of defense is that? He’s happy to screw them–anyone, in fact–over when it serves him.

          The bar for supporting Trump just keeps getting lower. “He does not, as far as I know, mow down random innocent pedestrians with his car.”

          1. What kind of defense is it? About the best defense you can expect of most politicians. It’s rare you can get one who is genuinely ideologically in your corner. If you can’t, one who pragmatically views your support as needed is better than an ideologue on the other side.

            1. Do you expect your preferences to prevail in America, Brett?

          2. Brett : “About the best defense you can expect of most politicians…”

            Brett has needed a broad range of tactics to defend Trump’s dishonesty, corruption, and incompetence. One of his most essential tools is defining deviancy down, so Trump becomes no different than any other pol. For instance, several times recently Brett has (gamely) insisted his orange idol lies not a jot more than your typical politician. It’s only that accursed liberal media that has convinced everyone Trump has a pathological aversion to truth.

      2. “He’ll use any means to obtain his personal goals.”

        Getting reelected?

        Oh scary. A personal goal shared by literally every incumbent.

        1. As you well know, it’s the “any means” part that was the criticism. Don’t be obtuse.

          1. Its a proposed executive order, not mass firing squads.

            1. If you reasoning requires a ‘so long as I don’t think it’s a big deal’ proviso, it’s not really well reasoned at all.

  9. This has zip to do with strategy for the court case.

    It’s just more GOP BS designed to fool the gullible into thinking they care about pre-existing conditions. They don’t.

    They’ve been promising a new, wonderful, plan for years. Remember “repeal and replace?” They introduced nothing, even in 2017-18, when they controlled both Houses. Meanwhile Trump continues to promise such a plan any day now.

    Typical, total, horseshit.

    1. I’m sure the Trump big health proposal is something like:

      Wait for Democrats to present something thought-through and comprehensive; pick a few things he can accept a la carte; when Democrats object to proceeding piecemeal, he goes golfing and says that he’s awaiting a counter-offer. Same as they’re doing on coronavirus relief.

  10. “The exchanges” were created by the ACA. If the entire ACA falls, as the Trump administration is advocating, then an executive order about continuing to cover certain people on “the exchanges” is completely meaningless. The Cato brief may not take the position that the entire ACA should fall, but the SG is. This is incoherent, and the forthcoming “executive order” is just window dressing.

    1. If the entire ACA falls, as the Trump administration is advocating, then an executive order about continuing to cover certain people on “the exchanges” is completely meaningless.

      Yes.

      Blackman seems to have overlooked this minor point.

  11. You had me at “Trump’s response is barely coherent.” Any resemblance to the Cato position is an embarrassment.

    1. What does it say then that Blackman is able to translate that incoherence into support for his own position?

      1. That motivated reasoning is a wonderful drug.

      2. That he’s looking for a job?

  12. I haven’t been following this much at all, so perhaps this question is naive, but I’ll ask it anyway. What authority does the president have to require insurance companies to cover pre-existing conditions?

    1. Hush, you’re only supposed to ask that about Democratic presidents.

  13. Prof. Blackman is the future of movement conservatism in American legal academia.

    To which the liberal-libertarian mainstream declares: ‘Thank goodness.’

  14. ACA opponents lack the courage of their convictions, and want to have their cake and eat it too. They want the benefits of overturning the ACA without the political consequences.

  15. Josh, you opened with this statement:

    The media continues to completely miss what is going on here. (Just like they completely botched the President’s four executive actions–the New York Times is still saying they might be “unconstitutional.”)

    And I will say that, as a knowledgeable, informed, and expert reader, I have had to learn that you’re so likely to make bad-faith arguments and cherry-pick from your sources that I simply can’t trust that your conclusions on the NYT’s coverage is accurate. Yes, I’ve seen you trying to defend the executive orders. I haven’t been able to vet them carefully. So for now, I have to assume that you’re probably just lying through your teeth about this, like I have so frequently discovered you to be doing in the past.

    If Eugene or Orin or even Jonathan were to come to a conclusion like this, I’d at least be inclined to give their opinion some weight. But I just can’t trust you. You have completely burned away any good faith that readers like me might otherwise have for your writing.

    You should perhaps think about that and what kind of audience you want to cultivate or convince.

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