Trump Teases Executive Order On Pre-Existing Protections, I Suspect, To Help With ACA Litigation

The Cato Institute's amicus brief in California v. Texas proposed a very similar idea.


On Friday, President Trump teased a new executive order on healthcare:

"That's a big thing. I've always been very strongly in favor. We have to cover pre-existing conditions so we will be pursuing a major executive order requiring health insurance companies to cover all pre-existing conditions for all of its customers. This has never been done before."

Of course, the media pounced and said the ACA–the law Trump is trying to destroy–already requires insurers to protect people with pre-existing protections. Specifically, the law's guaranteed issue and community rating provisions (GICR) bar insurers from denying coverage, or charging higher premiums, to people with pre-existing condition.

So what is Trump up to? I can offer some uninformed speculation.

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.

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.

Let's see if the Trump executive order reflects the strategy in our brief. I have no inside information. But I wouldn't be surprised if the SG uses a similar strategy.

I will have much more to say about our amicus brief, as well as the Court's recent severability decisions (Seila Law and AAPC), as the arguments draw near.

NEXT: Univ. of California Mandating Flu Shots for All Students, Faculty, and Staff

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  1. Show me where in the constitution the president has the power to force insurance companies to cover pre-existing conditions in the absence of a congressionally passed law delegating that power. The president is not a king, and executive orders that apply to anyone other then the executive branch is unconstitutional.

    1. More interesting is the implicit, entirely-normal, unstated idea that courts base their decisions on outcomes first, legal rationalizations later.

      This same attitude has shown in quite a few articles here and elsewhere. Trying to second guess how the Supreme Court, or others, will make decisions, and what external non-legal factors will influence them, as if that were as normal as toothpaste. The outrage is not against such rationalizations, but against the wrong rationalizations.

      1. But that’s human nature. There’s a whole body of research that people’s opinions are determined by their confirmation bias and they then go looking for rationales to support the conclusions they’re already drawn. And no, judges aren’t supposed to do that but they’re human too.

        Which is why it’s fun to argue about politics and religion but only rarely does anyone change their core beliefs.

  2. So what is Trump up to? I can offer some uninformed speculation.

    Oh, good. That’s what we need.

    I, on the other hand, can offer some intelligent speculation: Trump knows that covering preexisting conditions is popular. Trump is very very very very very unpopular. Trump has nothing meaningful to offer the public in terms of policy. So he’ll just offer something that already exists so that he can claim to have delivered on it. Kind of the way he keeps claiming credit for Veteran’s Choice even though it was Obama who signed it into law a few years before Trump took office.

    1. Yeah; this isn’t rocket science.

      1. Most Trump fans are not rocket scientists.

        Like most successful peddlers of shoddy goods, Trump knows his target audience with exquisite precision — and disregards everyone else.

        Trump’s message is never aimed at a David Nieporent, a captcrisis, or a Sarcastr0. Trump aims lower, far lower, and often hits his downscale mark. He could not care less about how educated, reasoning, modern, accomplished people respond to his message, except perhaps to the extent he can lather his rubes by flattering their resentment toward credentialed, successful, skilled residents of educated, modern communities.

    2. Correct. It’s BS intended to gull the cultists, just like that wonderful plan he’s been promising to release any day now for the past 3-4 years.

  3. I dunno. If Trump can give this protection via Ex Order on a Friday, then I assume that if he manages to destroy the ACA, he can take away my/your protections via Ex Order # 2 the following Monday. Color me unimpressed. Color me terrified of losing any medical coverage.

    Josh, any speculations about why it took Trump only 3.5 years to do this?

  4. People who attend your TTT law school pay $35,000 a year to allow you to shit 10,000 words a week all over the floor of this establishment. Their employment prospects are iffy, but by god, you’ve got tenure and that’s what matters. Quantity over quality!

    You don’t engage on Twitter because people aren’t sufficiently deferential to your position as a professor at a law school so shitty it tried to steal another law school’s name and got sued.

    You don’t engage in comments here because you get even more omnipartisanly dunked on for your stupidity than Jim Lindgren, the guy who willingly signed up for Obama’s email list and was shocked to get an email asking him to sign an e-birthday card for Obama.

    Son, are you touched? Do you have any friends? Is there anyone who ever tells you, “Hey Josh, maybe just consider not saying anything about that?”

  5. “I will have much more to say about our amicus brief, as well as the Court’s recent severability decisions (Seila Law and AAPC), as the arguments draw near.”

    Thanks for warning us.

  6. Wow

    Josh Blackman has bought into trump as authoritarian leader totally

    An executive order is not law

    Judges should not consider either a possible executive order or even an actual executive order in deliberating a legal case

    Unless of course this is an authoritarian dictatorship

    Just wow

  7. When you see how far trumpistas have gone from their own principles and logic or reason, when they support wholeheartedly trumps fascist takeover of the gov’t and refusal to leave office, it will not be a surprise.
    How can they back out of this?

    They cannot
    And will take the republic with them to avoid having to face up to their own stupidity

    1. “And will take the republic with them to avoid having to face up to their own stupidity”

      No, they will not.

      Trump fans have, in general, never stuck with or accomplished much of anything worthwhile in life. They have been losers their entire lives, beaten by their betters in nearly every respect. These yahoos are not going to do much more than nip at the ankles of a strong, resilient, good America. Like its predecessors — the successive waves of intolerant, ignorant Americans who went after the Irish, Italians, Jews, Catholics, women, blacks, gays, Asians, Muslims, Hispanics and others — this latest batch of bigots is destined to lose.

  8. As usual, the blackman kid is cuckoo for cocoa puffs.

    The presidential debates are coming up. Biden will point out the scotus case, and when he does, trump can talk about his EO as evidence that he is very very powerfully and totally in support of coverage for pre-existing conditions.

    Any other motive that does involve trump’s re-election prospects would not interest him in the least.

  9. Good Grief

    Once again the ugly hypocrisy raises its head in this issue. Conservatives, or at least principled conservatives would react with horror that the executive branch could mandate the provisions of a contract between and insurer and the insured.

    But since this is something that the favorite son, Trump is doing instead of the hated son, Obama would be doing principles are out the door. Just don’t ask for our respect.

    1. Maybe this “executive order” is the last example David Bernstein needs to finally finish his book : “Lawless: The Trump Administration’s Unprecedented Assault on the Constitution and the Rule of Law”

      Ya gotta figure Professor Bernstein substance enough to fill up a book by now – and we all know how nonpartisan he is…..

      1. Prof. Bernstein’s twitter is hot on the case of explaining how the judiciary can’t do a moratorium on evictions; it’s gotta be the legislature.
        I think Trump just said he’s gonna do an eviction moratorium AND a payroll tax decrease via executive order.

        Must be saving that criticism for the book.

  10. Trump secretly supports Obamacare because the Kushner family is heavily invested in the ACA Exchange subsidies…sometimes Trump’s corruption helps Democrats. 😉

  11. I suspect the court will view this for what it is: a stunt.

  12. executive order requiring health insurance companies to cover all pre-existing conditions

    I’ll just go ahead and be the one to point out that if it’s for a pre-existing condition, it’s not insurance.

    “Hey, I wrecked my car yesterday, you should sell me insurance to cover the damages today.”

    But it’s not like anyone gives a fuck about language anymore, so, presumably I’m just screaming into the void again.

    1. Yet another problem to be solved by universal health care.

    2. And I’ll be the one to point out that if you develop a problem while you are insured, and your policy expires and can’t be renewed at a sensible rate, then it wasn’t insurance either, or at best it was a poor policy.

      This a core problem of health insurance, of course, and accounts for things like the mandate, community rating and so on.

      Trump’s blather isn’t going to solve it.

      1. And I’ll be the one to point out that if you develop a problem while you are insured, and your policy expires and can’t be renewed at a sensible rate, then it wasn’t insurance either, or at best it was a poor policy.

        That seems like a perfectly reasonable statement.

    3. We just call health insurance “health insurance”…similar to how we call bison “buffalo”. Really our health insurance system for ages 18-65 is funded by a VAT controlled by states and the employers most able to lobby their respective state governments. So Republicans that support the status quo support a VAT created by the UAW and New Deal Democrats…lol. 😉

  13. ACA opponents are trying to have their cake and eat it too, not willing to suffer the political consequences of their legal positions.

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