HARRY G. HUTCHISON, ACLJ
On President Trump’s first day in office, the ACLJ has already achieved a significant victory as the President adopts a key ACLJ recommendation aimed at bringing down pro-abortion ObamaCare.
As one of his first acts, President Trump issued an Executive order directing the Secretary of Health and Human Services (HHS) to grant waivers and exemptions to the Affordable Care Act (ACA or ObamaCare). This order could effectively gut the individual mandate.
The Trump Administration’s move responds to the prior Administration’s decision to issue more than 1,000 ObamaCare exemptions and waivers to select favored business and institutions. Surely individual Americans deserve to be treated just as well as selected companies and organizations that were given special treatment by the Obama Administration.
Here’s how President Trump began the process of dismantling the ObamaCare: Pending the prompt repeal of the Affordable Care Act and to the maximum extent permitted by law, he signed an Executive order directing relevant federal agencies to grant waivers and exemptions from key provisions of the ACA. This move adopts one of the ACLJ’s specific policy recommendations and is consistent with the tenor and tone of other recommendations we’ve made. The move also achieves the goal of several lawsuits which we have previously been involved in to invalidate ObamaCare entirely or to halt the implementation of its various provisions.
In fact, the ACLJ has been at the forefront of opposing ObamaCare since Day One. We knew what was in it before it passed, and we fought on Capitol Hill, highlighting and exposing the pro-abortion aspects of ObamaCare as soon as it was first proposed. We filed amicus briefs all the way to the Supreme Court opposing ObamaCare’s individual mandate. We filed more amicus briefs at the Supreme Court against President Obama’s illegal grant of ObamaCare subsidies in direct contravention of the text of ObamaCare.
We filed seven critical lawsuits in federal court against the HHS abortion-pill mandate. We fought all the way to the Supreme Court and won, not only taking our own case but also filing amicus briefs in the Hobby Lobby case, defeating the abortion-pill mandate and protecting the religious liberty of pro-life business owners. We also filed numerous amicus briefs on behalf of pro-life non-profit charities, including in defense of Little Sisters of the Poor, all the way to the Supreme Court, helping achieve a monumental victory.
In fact, when President Obama started handing out waivers to his preferred businesses, we proposed granting every American a waiver from ObamaCare’s onerous, job-killing, pro-abortion mandates. As we said at the time, “Everyone deserves an exemption from ObamaCare; it’s the only fair thing to do.”
Recently, we outlined exactly what President Trump needed to do: “issue an immediate waiver of all fines and penalties associated with the individual mandate, or alternatively, since the mandate operates as a tax, President Trump could instruct the IRS to make collection of this tax a low priority, thus signaling that individual taxpayers would not be penalized for failing to purchase qualifying insurance.”
Now President Trump has issued an Executive order directing the Secretary of Health and Human Services to do just that.
President Trump’s Executive order directs that wherever the ACA imposes “a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families,” and others, the heads of Health and Human Services and any other department and agency with authority under the ACA – which includes the Internal Revenue Service – “shall exercise all authority and discretion” to waive, defer, grant exemptions from, or delay the implementation of any provision” of the ACA causing the burden, cost, or tax.
The President has made his endgame crystal clear: “It is the policy of my Administration to seek the prompt repeal of the Patient Protection and Affordable Care Act.” Until repeal occurs, however, President Trump wasted no time in dismantling the ACA’s draconian “mandate” that all must comply with or suffer a tax penalty.
The ACLJ applauds President Trump’s Executive order as a significant first stet and a victory for the American people. We also renew our earlier recommendations for additional immediate actions to dismantle ObamaCare:
First, we call on President Trump to immediately reverse or modify the enforceability of the abortion-pill mandate, particularly regarding religious institutions. The Trump Administration should decline to require institutions such as the Little Sisters of the Poor to violate their conscience or face onerous penalties. In addition, we urge the President to completely and utterly remove the abortion-pill mandate from the Federal Register.
Second, we urge the Trump Administration to stop all cost-sharing subsidy payments to insurance companies that are contrary to the current text of the law. The unconstitutionality of this program has been confirmed by Judge Rosemary Collyer’s May 2016 decision in House v. Burwell. President Trump should ask the Justice Department to drop the prior Administration’s appeal in this case.
Third, the Trump Administration should immediately halt the prior Administration’s practice of bailing out insurance companies for high-cost patients because such an insurance bailout violates the text of the law. The text of the ACA requires that the United States Treasury to be reimbursed by as much as $5 billion dollars before insurance companies can be reimbursed.
While the full repeal of ObamaCare is the goal of most Americans, in the interim, uniform with President Trump’s Day One Executive order, we urge the prompt implementation of additional constitutional Executive actions that advance this objective.
The American people have waited long enough.
ACLJ Senior Counsel for Public Policy Ben Sisney contributed to this report.
Used with the permission of the American Center for Law and Justice.
Harry G. Hutchison is Senior Counsel and Director of Policy for the ACLJ. He has served as a Professor of Law at the Antonin Scalia Law School, George Mason University, a Visiting Fellow at Harris Manchester College, the University of Oxford, and a Founding Fellow at the Oxford Centre for the Study of Law & Public Policy. His research interests include international affairs, corporate governance, labor and employment law, religious liberty and the application of economics to a variety of topics.