President Trump's Executive Order on An America-First Healthcare Plan

There are some references to the ACA litigation

|The Volokh Conspiracy |

In August, President Trump teased a future executive order concerning pre-existing conditions. (See here and here). At the time, I predicted that Trump was trying to aid the Supreme Court's deliberations in Texas v. California. I wrote;

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.

Today President Trump signed the self-styled "Executive Order on An America-First Healthcare Plan." There are several references to the ACA litigation that, I think, are leading towards my proposal.

First, Trump accurately characterizes what the TCJA did–well sort of. The penalty was reduced to $0. Usually Trump says that he repealed the mandate. I am sure the SG will quote this sentence if a Justice tries to cite press statements.

On December 22, 2017, I signed into law the repeal of the burdensome individual-mandate penalty, liberating millions of low-income Americans from a tax that penalized them for not purchasing health-insurance coverage they did not want or could not afford

Second, the order includes a history of the ACA's failures. I'm not really sure what purpose this discussion serves:

In an attempt to justify the ACA, the previous Administration claimed that, absent action by the Congress, up to 129 million (later updated to 133 million) non-elderly people with what it described as pre-existing conditions were in danger of being denied health-insurance coverage.  According to the previous Administration, however, only 2.7 percent of such individuals actually gained access to health insurance through the ACA, given existing laws and programs already in place to cover them.  For example, the Health Insurance Portability and Accountability Act of 1996 has long protected individuals with pre-existing conditions, including individuals covered by group health plans and individuals who had such coverage but lost it.

The ACA produced multiple other failures.  The average insurance premium in the individual market more than doubled from 2013 to 2017, and those who have not received generous Federal subsidies have struggled to maintain coverage.  For those who have managed to maintain coverage, many have experienced a substantial rise in deductibles, limited choice of insurers, and limited provider networks that exclude their doctors and the facilities best suited to care for them.

Additionally, approximately 30 million Americans remain uninsured, notwithstanding the previous Administration's promises that the ACA would address this intractable problem.  On top of these disappointing results, Federal taxpayers and, unfortunately, future generations of American workers, have been left with an enormous bill.  The ACA's Medicaid expansion and subsidies for the individual market are projected by the Congressional Budget Office to cost more than $1.8 trillion over the next decade.

Third, the President references the pending challenge:

The ACA is neither the best nor the only way to ensure that Americans who suffer from pre-existing conditions have access to health-insurance coverage.  I have agreed with the States challenging the ACA, who have won in the Federal district court and court of appeals, that the ACA, as amended, exceeds the power of the Congress.  The ACA was flawed from its inception and should be struck down.  However, access to health insurance despite underlying health conditions should be maintained, even if the Supreme Court invalidates the unconstitutional, and largely harmful, ACA.

Alas, the SG does not argue that the entire law should be struck down. The government's position is far more nuanced. But the far more important sentence is the last one. Even if the law is "invalidated," access to pre-existing protections should be maintained. But how? Not through legislation. He is hinting at a future executive action.

No action is taken here. Rather, there is a policy section:

Sec2.  Policy.  It has been and will continue to be the policy of the United States to give Americans seeking healthcare more choice, lower costs, and better care and to ensure that Americans with pre-existing conditions can obtain the insurance of their choice at affordable rates.

I think here Trump is giving his administration guidance to prepare. a "safety net" if the Supreme Court takes some action against Guaranteed Issue and Community rating.

Sec3.  Giving Americans More Choice in Healthcare.  The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall maintain and build upon existing actions to expand access to and options for affordable healthcare.

Stay tuned. We may even have 9 Justices when the ACA case is argued on November 10.

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  1. No plan.

    Just hatred of Obamacare (actually hatred of Obama).

    Where is the plan to address the problems of the uninsured, and the sick people going bankrupt because of health care costs? We are the only industrialized country that has this problem.

    Obamacare was a serious attempt. It was crafted by dedicated, knowledgeable people. This blog has, from the first, been dedicated only to tearing it down, with no replacement.

    1. This is accurate. Neither Shapiro nor Blackman, much less Trump, want more health care available to the country. This “analysis” of the effects of the ACA is essentially ideological, notably the bemoaning of the expansion of Medicaid. And the EO is meaningless and powerless. More talk and no action, in the middle of a pandemic. “Don’t get sick, but if you do, die quickly.”

      1. The republicans are going from social Darwinism to actual Darwinism.

        1. More accurate: The Republicans are going from deserved irrelevance to actual irrelevance. The course will be set in November, conducted beginning in January.

          Single-payer health care should be one of the first improvements tackled; enactment late in the spring would be good. I just hope the program is formally named Obamacare.

      2. Is anyone up for substantive responses to the (considerable) substance in Pacific and captcrisis’s comments above? It would be great if this were one of the few subthreads that gets less rather than more partisan as the conversation proceeds. Maybe start a trend, even.

        1. Well, “Neither Shapiro nor Blackman, much less Trump, want more health care available to the country.”

          This seems like the usual, partisan, “My political foes have the worst motives I can imagine for everything they do!” blather.

          ” This “analysis” of the effects of the ACA is essentially ideological, notably the bemoaning of the expansion of Medicaid.”

          People in politics have ideologies, news at 11.

          “And the EO is meaningless and powerless. More talk and no action, in the middle of a pandemic.”

          Somewhat true. The fundamental problem is that Congress has gone from mostly dysfunctional, to totally dysfunctional, but we still have a legal system which demands things be done by legislation. To the extent the Constitution is actually being enforced…

          ““Don’t get sick, but if you do, die quickly.””

          And, back to point #1.

          1. “My political foes have the worst motives I can imagine for everything they do!”

            Look in a mirror, Brett.

          2. Not responsive to arch1.

          3. “This seems like the usual, partisan, “My political foes have the worst motives I can imagine for everything they do!” blather.”

            The motive is simple. Republicans don’t like paying taxes that support anything other than gun manufacturers. If there’s no tax revenue, there’s no money to spend on sick people. If there’s no money to spend on sick people, the sick people either remain sick and require more spending, or they become dead. If they become dead, they don’t need anything anymore and thus require no spending. Because of this a Republican health plan is going to prefer that people who get sick die quickly. (You might even start to see them taking efforts to spread a pandemic, to kill off old people who might otherwise need healthcare spending).
            No hypothetical aspersion of “worst possible motives” required, just observation of one significant habit of Republicans. Go ahead, tell me I’m wrong, and Republicans love paying taxes.

            1. “Republicans don’t like paying taxes that support anything other than gun manufacturers. ”

              That is a damnable lie.

              Republicans like paying taxes that support faith healers, televangelists, and traveling rattlesnake-juggling exhibitions.

    2. This is not accurate.

      Obamacare was a serious attempt. It was crafted by dedicated, knowledgeable people.

      Only partisan hacks keep their blinders on like that.

      1. It’s not a great program, but just because you don’t like it doesn’t mean it wasn’t crafted by policy experts.

        1. It’s not a great policy because it was altered in a vain effort to try to get Republicans aboard.
          The competing Republican plan is that poor people get sick and stay sick until they die, which they deserve for being poor. This plan is even applied to the military, whom Republicans claim in public to support. You can see it in action every time they have to decide whether to allocate resources to a weapons system vendor or to taking care of the people who operate them.

        2. Don’t do that. It is a great program that has helped millions of Americans and could help millions more. But it has never been allowed to function properly, beginning with the Medicare expansion ruling all the way through the various sabotages enacted over the years.

          1. Right.

            It’s a good plan that would be better if the Republicans hadn’t consistently tried to undermine it. Maybe not perfect, but still fine.

            Maybe the best argument for that is that for all the zeal with which they attack it, the Republicans have never come close to offering a sensible replacement.

            No doubt some here really believe Trump is going to pull a wondrous plan out of his ass tomorrow, or the next day, but anyone with a brain knows better.

      2. Disparaging “partisan hacks” at a blog operated by partisan hacks seems discourteous.

    3. “Where is the plan to address the problems of the uninsured”

      They’ll get sick and die, and then they won’t have any more problems.

    4. captcrisis…I agree with you that PPACA was a well-intentioned, serious attempt, and the legislation was crafted by dedicated, knowledgeable people. I truly believe this to be the case. They saw a problem, and tried to make a good faith effort to address it.

      Objectively speaking, it was disastrous. That is not a value judgment, or a personal judgment. It is what happened in the aftermath of PPACA passage. There just was not a broad consensus on the approach, and the market distortions it created with the enabling regulations that were written were horrendous.

      My point to you: There is no single ‘replacement’ to PPACA.

      One takeaway I had from the entire experience: I believe the ultimate solution to healthcare cost is going to be slow, and incremental. Maybe it is hubris, but it seems every POTUS wants to do something enormous…and they rarely succeed. And I think that is as it should be, in our republic system.

      1. You are never going to get a “broad consensus” when half of the people involved want nothing to do with any effort that might be a political win for their political opponent(s). That Americans would be helped was never a concern. For eleven months Obama tweaked and maneuvered to attempt to get even one Republican on board — which is what constitutes “bipartisan” in the 21st century — to no avail. Every hand extended got slapped away.

        1. That’s exactly right.

          https://www.nytimes.com/interactive/2017/07/21/us/health-care-amendments.html

          The ACA included 188 amendments suggested by Republicans. The Republican “replacement” included 0 amendments by Democrats.

    5. Correction – not dedicated to “tearing down Obamacare,” but rather, dedicated to “fashioning careers through writing about ways to tear down Obamacare.” Randy did it so well, Josh is trying to do the same.

  2. Just make health care costs, including health insurance, tax deductible. Then employer-provided plans go away and we get a genuine market.

    1. Would that be an above the line deduction, or below the line?

    2. Exactly. And make it possible to buy health insurance across state lines, so that states can’t warp what is realistically a nation-wide market.

      Really, almost all the distortions are due to health insurance usually being linked to your employer, and to the Balkanized market.

      1. This “Across states lines” pitch is, and has always been, meaningless.

        1. “This “Across states lines” pitch is, and has always been, meaningless.”

          To me it means that a company in one state can sell insurance in another state. Is that wrong?

          1. You mean they can’t?

            Aetna certainly is active.

            1. I expect that Aetna, like BC/BS, gets by having subsidiaries in each state.

              1. That may satisfy legal requirements, but I doubt their plans differ all that much from state to state, which suggests that selling across state lines is not quite the panacea some claim.

                And of course there is always the race to the bottom problem.

                1. Well, you’re certainly free to doubt it, but I hope you understand if I don’t think your doubt is actually evidence of anything.

                  You say race to the bottom, I say race to the customers’ actual preferences.

                2. Why is it only healthcare has a race to the bottom problem?

                  The two most heavily regulated industries in the US, healthcare and education, are the two with the highest inflation. All other markets have seen price reductions.

                  1. High health care spending is rational to some degree because it makes sense we would focus a lot of our resources on our health…except health care spending is by far the least bang for the buck with respect to one’s actual health. So Canada and UK have crappy health care systems but beat America on several health indicators like life expectancy. So in the end spending a lot on health care is irrational but understandable, although keep in mind Republicans were the party saying the economy is more important than everyone’s health during the pandemic so you would think Republicans would also support single payer which would lead to less health care spending and greater GDP growth. Requiring 18 year olds to pay tuition is just the dumbest concept anyone has ever come up with. Thankfully Americans are realizing a BA is a commodity and so you should pay as little as possible for a commodity…although wealthy people still find value in prestigious degrees but a degree from most private colleges means you are an idiot that took out student loans or your parents are wealthy.

                    1. Republicans think the reason that our health care system is so screwed up, is that it’s the part of the economy that functions least like a normal free market, and is most burdened by regulation.

                      It’s provided by a labor cartel.

                      Most financing passes through third parties, screwing up price signals.

                      The market is Balkinized on a state by state basis.

                      And every part of it functions in a totally tied up in regulation environment.

                      Given this diagnosis, naturally Republicans aren’t going to favor finishing the takeover by government, and turning it into a public utility.

                    2. Ipso facto, you support the current VAT that funds most health care costs in America, Brett. So every good and service you purchase in America includes someone else’s health care costs. By paying for the internet you are covering the costs of someone’s abortion…you make Jesus and Rick Santorum sadz.

                    3. Republicans think the reason that our health care system is so screwed up, is that it’s the part of the economy that functions least like a normal free market,

                      You mean al those other countries with functioning health care systems operate free markets?

                      Most financing passes through third parties, screwing up price signals.

                      Are you suggesting health insurance should be outlawed?

                      The market is Balkinized on a state by state basis.

                      Jack Balkin has nothing to do with it.

                      Anyway, I love it when ardent federalists make this argument. You’re the ones always going on about state sovereignty, and local control, and so on.

                  2. “The two most heavily regulated industries in the US, healthcare and education, are the two with the highest inflation. All other markets have seen price reductions.”

                    Do you ever stop to even gut check claims like this? You really think that higher education is more regulated by the government than banking, coal mining, or air transport?

                    Five seconds of searching on the Internet (“most regulated industries”) demonstrates that you’re wildly incorrect: https://www.mercatus.org/publications/regulation/mclaughlin-sherouse-list-10-most-regulated-industries-2014

                  3. Health insurance, not care, is what will have a race to the bottom, and it’s not one of the two most regulated industries.

                    Still, health insurance, like other insurance, does need to be regulated. Somebody has to make sure the company has the money to pay claims, among other things.

              2. Health insurance is at the county/zip code level, all other lines on a map are irrelevant to health insurance. Btw, that is also why Bernie and Warren pushing Medicare 4 All is so disingenuous because M4A makes more sense to implement at the state level than at the federal level…so Canada’s health care system goes province by province.

          2. “To me it means that a company in one state can sell insurance in another state. Is that wrong?”

            Depends on their ability to actually deliver services.

          3. The actual effect will be that insurers will relocate to whichever state has the most lax requirements for insurance.

          4. It means that a company in one state can sell insurance in another state without having to submit to that other state’s own insurance regulations.

            That’s why a federal “solution” is required. States normally can regulate the offering of insurance to residents of their own states. The whole “across state lines” claptrap is about superseding that authority and allowing the most lenient state to hoover up all the insurance business.

            It’s like federally mandating that states respect gun licenses issued in other states. Shouldn’t be a federal decision.

    3. Great! Does tax-deductible health care costs include Lasik, cosmetic surgery, and spa services?

      1. I don’t give a shit, whatever employer-provide health plans can cover now without being taxed. The goal is to eliminate the disparity between employer-provided health care and non-employer provide health care.

        Making all health care tax deductible is an easier way to eliminate that disparity. You can argue about whether or not taxing all health care is a better way to do that, but I don’t feel like arguing about that right now.

        1. Employer provided health care is essentially a VAT controlled by the states and the biggest employers in a state. Big business supports the status quo and so the best thing to do would be to simply bolster Obamacare which would probably not even cost anything as the Exchange pools grew healthier as people with higher income get on the Exchanges due to getting subsidies. I think having some semblance of private market forces is better than having none like in many other developed countries. So we actually have a substantial government health care system and the employer provided market is quasi government controlled and I think that is a good thing.

    4. “Just make health care costs, including health insurance, tax deductible.”

      Why do Republicans try to involve everything in tax policy?

    5. How does that help someone with tens of thousands in medical bills but who don’t make enough money to pay federal income taxes, or those who make just above that line?

    6. How do employer-provided plans go away?

  3. Bleh,

    I’m tired of executive orders. Can we get actual laws passed like we’re supposed to? And listened to?

    1. That’s not in McConnell’s wheelhouse.

    2. Yeah. On what authority does the Executive issue Orders to private companies ?

      1. Sovereign Right.

  4. “Second, the order includes a history of the ACA’s failures. I’m not really sure what purpose this discussion serves:”

    I think that’s pretty straightforward. The ACA survived due to some members of the Court ruling on whether it was desirable policy, not on straightforward legal issues. Listing its failures is intended to sway them on the basis that actually drove their reasoning, rather than just disputing the excuse they used for the outcome.

    1. “The ACA survived due to some members of the Court ruling on whether it was desirable policy, not on straightforward legal issues.”

      I thought this was only what terrible liberal judges did, not virtuous Republican-appointed conservative justices.

      Brett: are you making the case that the decisions in the lower courts on the current ACA case are actually well-grounded as a matter of law? That Congress reduced the penalty to $0 but didn’t believe that the rest of the ACA could operate without the existence of the $0 penalty, and that the way we should decide severability is based on comments made during the passage of (a previous version of) the law?

      1. He honestly believes that.

  5. Courts messing with the ACA is a prescription for court-packing.

    1. Justices breathing is a prescription for court-packing at this point.

      1. Technically, I think it’s Justices not breathing that’s the prescription…

  6. Listing its failures is intended to sway them on the basis that actually drove their reasoning, rather than just disputing the excuse they used for the outcome.

    Does the order mention that a big part of the reason lots of people are uninsured is that a bunch of idiot GOP governors turned down the Medicaid expansion? Can’t have poor people going to the doctor.

    I’d like to see documentation and analysis of the rest of the claims.

      1. Well, shit. We better make sure no one except for me has health insurance in my zip code so the ambulances can get here right quick when I need one.

        More seriously (and as the abstract points out) I thought the magic of markets was supposed to fix this problem by making more ambulances. Or are you making the case that the government should be in charge of ambuluance-providing so that they can balance both sides of the equation?

        1. The magic of markets does not apply when there is no free market. In the heavily and often irrationally regulated market we have, there is no financial incentive for hospitals to provide more ambulances than the minimum they are required to. Wealthy patients who can pay inflated hospital bills generally have other ways to get to the hospital, such as relatives or employees to drive them there or fee-for-service private ambulance firms. More ambulances won’t bring more wealthy patients, but if there actually weren’t enough ambulances, more _will_ bring more indigent patients to the ER, where the hospital is required to care for them whether or not anyone who pays the bill. These bills are possibly reimbursed by Medicaid and Medicare – but at below-market and often even below-cost rates.

    1. Bingo Bernard11. And guess which red states have expanded Medicaid?? The Trumpiest states and Utah. So West Virginia is Trump’s best state and the Trump supporters are under the impression the Medicaid expansion is Byrdcare and not Obamacare. Shhh, let’s keep it a secret. Utah expanded Medicaid because Mormons start having babies at 20 and now the federal government is picking up their maternity costs. The crazy thing is the Mormon church actually figured out a way to cover 20 year olds’ maternity but after they got over their Obama hate they expanded Medicaid…duuuuh.

  7. You’re being played for a sucker, Josh.

    Where’s the plan?

    Trump has been promising for years to offer a wonderful, beautiful, plan. About a month ago he promised to release it in two weeks. Where is it?

    This order doesn’t order anything except tell his Administration to keep working on the mythical plan. It’s utter bullshit – a list of claims of all the wonderful things he’s done.

    Why do you take it seriously as anything but a campaign document?

    1. The plan is “don’t get sick, but if you do, die quickly.”

    2. “Why do you take it seriously as anything but a campaign document?”

      Trump’s ass isn’t going to kiss itself.

    3. “Where’s the plan?

      Trump has been promising for years to offer a wonderful, beautiful, plan. ”

      The plan is this:
      Get your father to leave you a big pile of money early in your adulthood, and live off of that money for the rest of your life. Also known as the “Trump success plan”, anyone who doesn’t follow this plan is a chump and a loser.

      1. Do they teach this at Trump University?

      2. Even better, get about $800 million in government subsidies and then bankrupt a publicly traded corporation while every other player in the industry makes boatloads of money.

  8. Biden and Congressional Democrats please take note:

    If you win the election and decide to reainstate the coverage mandate next year, please be sure to call whatever people pay for not having coverage a “tax” and not a “penalty.” It’s important. If you do this,

    1. You will save yourself a lot of hassle in the courts.
    2. A small army of law professors, including our own Professor Blackman, will have to find something else to twist themselves into knots about.

    1. Good advice.

      Maybe Randy Barnett will find something useful to do.

      1. Randy’s found a rewarding life owning libs on Twitter.

        1. Not for long, if we are to believe the narrative that Twitter doesn’t permit conservatives to be conservative on their platform.

          1. Such complaints would be a lot more believable if they weren’t all over Twitter.

  9. I suggest everyone take a minute and speculate on what the reaction would be by the poster and those who agree with him if Barack Obama had argued that he had the power by executive order to require insurance companies to provide coverage without respect to pre-existing conditions. Really, think of the outrage and opposition.

    The continued apologies for Trump flouting of basic conservative tenets just because one is a supporter of his is degrading, not to the audience but to the persons who sacrifice their integrity to do this. And doesn’t everyone think that if President Obama had the power to require insurers to disregard pre-existing conditions that he would have done so. Or was everyone in his administration stupid and ignorant.

    1. Principles? Haaa ha ha ha ha! Who matters, not what. You judge actions of a politician not by what they do, but by if they’re on your TEAM or not.

  10. It’s amazing you can type with Trump’s mushroom stuffed in your mouth, Blackman.

    What a spineless hack you are.

  11. I understand why libertarians would take issue with the ACA, given that it is legislation that so actively interferes with a particular industry. However, it seems to me that replacing legislation passed by Congress with an executive order from the president that also has a controlling effect on an industry doesn’t seem very libertarian at all.

    1. Well, I’m not going to say I’m thrilled with much of this. Clearing regulatory obstacles that aren’t outright mandated by legislation, sure. He may be going beyond that, though.

    2. The “executive order” is a nullity.

      It does nothing.

  12. I can’t decide…

    Is Blackman really a big enough idiot that he’s buying this hook, line and stinker?
    Or does he just think his readers are?

  13. The great thing about the vagueness of everything Trump says is that it allows the reader/listener to insert whatever they like in place of the nothingness within Trump’s actual words. This is what the blackman kid is doing here. Inserting his familiarity in place of the nothingness.

    1. I can’t believe people actually go to arenas to listen to him ramble and drone on about nonsense?!? My theory is that they don’t have Netflix and they are bored watching Fox News every night.

      1. It’s a show. Sort of like World Wide Wrestling. Everyone knows its a show, not a real wrestling match or serious discussion of anything, but they go to be entertained. Now they get the added thrill of taking their lives in their hands by exposing themselves to Cover. That’ll show those Libs just how tough they are.

        1. Covid (I love and hate spell check)

  14. So, our President has just announced plans for an unfunded $200 distribution to Medicare recipients in the form of a card to be used for payment of copays on prescriptions just before an election. Congress never authorized any such program. There is no apparent funding for it anyway other than a vague notion that some future plan to lower drug costs based on buying drugs in larger quantities and getting a discount to be passed on to Medicare recipients. This seems to be a gross violation of how the Government pays for programs and a raid on the treasury to be a type of bribe to seniors. Enough already.

    1. I cannot wait to read all the fascinating libertarian reasons why there’s nothing wrong with that. Especially the ones that are supported by pointing to something a Democrat did or said that one time. Brett, you should start.

    2. Biden is a “socialist nightmare”. Here’s $200.

  15. Interesting to be arguing, at the same time, that Congress doesn’t have the power to legislate on this topic but the President has the power to issue orders on it.

    1. That’s the Unitary Executive (Democrats Need Not Apply) for you.

  16. There’s no analysis of the Constitutionality of this executive order? I don’t see how an executive order can require insurance companies to accept customers with preexisting conditions. That being said, I’m not sure Blackman is arguing that it can, just that it might persuade the Supreme Court that it’s OK to strike down the ACA and worry about this later.

  17. Without getting into the details too far, wouldn’t the Supreme Court decision in Youngstown Sheet & Tube Co. v. Sawyer have some relevance here. Admittedly in Youngstown the Court ruled against the government’s seizing of private property, but that case hinged on the president’s ability to act through executive action in the absence of statutory authority.

  18. Why do SCOTUS cases even consider policy outcomes? That has nothing to do with the legal principles.

    That just further demonstrates how utterly corrupt and worthless our judicial system is.

    1. Not exactly Sam. More like it demonstrates how utterly corrupt and worthless Trump supposes our judicial system is. He likes thinking that, by the way.

  19. If it accepts pre-existing conditions, IT’S NOT INSURANCE! That’s like buying fire insurance after your house burns down. (Maybe it’s best not to mention that around Democrap politicians, they might want to make it mandatory for the company to issue the policy and pay off of a house that was already burned down.)

    Second, if house insurance was like health “insurance”, you’d get it through your employer, rather than choosing an insurer for yourself. Insurers would compete to lower the cost to the employer, reducing service as far as the law allows. And when your house burned down, they’d only pay to replace it if you could get it built before you changed jobs…

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