The repeal of the ACA is already underway using the budget reconciliation process. But it could amount to a matter of weeks before it takes effect. Because of the delay, the Vice-President-elect has made comments recently to suggest the new administration will use executive orders to get the ball rolling once they assume office.
Timothy Jost, Emeritus Professor at the Washington and Lee University School of Law, explores whether such executive orders could be used to help the repeal process without congressional action. He concludes that executive orders, though legally binding when based on a statute or the Constitution, cannot be used to repeal or amend a statute and do not carry any authority if they conflict with the law.
The ACA came into effect though the use of the regulatory process. Because of this, certain requirements needed to be followed before any regulations became law. Jost concludes the new administration will not have the power to repeal or amend any regulations already in effect unless a new round of rulemaking procedures are implemented which explain why the revocations or amendments are needed.
Additionally, the ACA for the most part has been implemented through guidance. This is a process that also allows for the making of amendments. But the process cannot be used to amend rules or statutes.
According to Jost some possibilities in the days ahead for the new administration include:
- Reducing resources to agencies that operate ACA programs which would undermine their ability to operate effectively;
- Reduced enforcement of some ACA requirements, such as individual and employer mandates;
- Decision making with regard to State Medicaid or 1332 waiver applications;
- Whether to continue litigation of the lower court decision House v. Burwell which blocks insurers from receiving reimbursement for cost-sharing reductions they are required to offer low-income enrolees;
- Responding to the many cases brought by religious organizations over contraceptive coverage; and
- Responding to regulatory requirements that stops insurers rejecting outright cover for gender change services.
The big question is whether the new administration will overstep the mark with regard to substantive and procedural requirements of the ACA. This could lead to an increase in litigation by those most effected.