President-elect Trump is filling his Cabinet with people who for years have resisted Obamacare, making it likely the new administration will pull back on the healthcare law at every turn.
Incoming Labor Secretary Andy Puzder has twice testified before Congress against the law. Environmental Protection Agency administrator nominee Scott Pruitt has sued the federal government over it. Incoming Attorney General Jeff Sessions has backed efforts to defund it. Future Commerce Secretary Wilbur Ross has publicly criticized it. And Rep. Tom Price, who was nominated to lead the Department of Health and Human Services, has proposed an alternative to it.
Most of the jurisdiction over the Affordable Care Act resides at the Department of Health and Human Services, and that agency will be led by Price, assuming his nomination is confirmed by the Senate, a doctor and one of the healthcare law’s harshest critics who has proposed his own health reform alternative several times.
But a number of other agencies, including Treasury, the Department of Labor and the Department of Justice, have sway over how the healthcare law’s provisions are carried out and how it is defended in court.
So Trump’s team of appointees will be able to act on their long-time opposition to the Affordable Care Act by clamping down on parts of the law, even without a repeal vote by Congress.
“It is true what they say, that personnel is policy,” said Chris Jennings, a prominent former healthcare adviser to the Obama White House.
Puzder has been picked to lead the Department of Labor, an agency with some oversight over employer-sponsored health coverage and influence over the Affordable Care Act. Labor has a role in working with HHS to determine the essential health benefits that individual and small group plans must cover and helping define some of the specific rules around which workers are eligible for coverage.
Puzder, whose CKE Restaurants includes the Carl’s Jr. and Hardee’s chains, has told Congress that he had obtained estimates that the healthcare law would cost his company $18 million more every year.
He testified before the House Oversight’s health subcommittee in 2011 and then before the House Energy and Commerce’s oversight subcommittee 2012 against new Obamacare regulations.
In those hearings, he pushed hard against the law’s menu labeling requirements, which require most restaurants to post calorie counts on their menu boards for customers to easily view. While stressing that he supports the idea of making nutrition information available, he found the requirements too prescriptive and inflexible for restaurants.
Puzder also criticized the law’s mandate for employers to offer health coverage to those working at least 30 hours weekly, writing in the Wall Street Journal that only 6 percent of his employees eligible to enroll did so, while the rest chose to pay the penalty for remaining uninsured.
“Obamacare has caused millions of full-time jobs to become part-time, imposed a tax on lower-income workers who cannot afford it, forced millions of people out of insurance they liked, restricted access to doctors for millions of others, and created an enormous bureaucracy that discourages our doctors and nurses while suppressing health-care system innovation,” Puzder wrote in a Jan. 13, 2015, op-ed.
A number of big Obamacare decisions will face Jeff Sessions when he takes over as U.S. attorney general next month. Under Obama, the Justice Department has defended the law in several high-profile court cases, a few of which are still going on, but Sessions can pull back.
He could decide to halt the Obama administration’s appeal of a federal ruling upholding House Republicans’ lawsuit against the law’s cost-sharing subsidies. Judge Rosemary Collyer said earlier this year that the subsidies, which help low-income Americans pay out-of-pocket insurance costs, can’t be awarded to insurers without an express appropriation from Congress.
Sessions also could refuse to settle lawsuits from insurers with more expensive Obamacare customers that are demanding the federal government pay them the risk corridor funds the companies have requested. The risk corridor program transfers money from insurers with healthier customers to insurers with sicker, higher-cost customers, but there aren’t enough fees from insurers to cover the program’s costs.
The Obama administration, which has been blocked by Congress from shifting around federal funds to cover the costs, suggested earlier this year that it might provide the funds another way by settling the lawsuit, prompting protests from Republican lawmakers.
Sessions also can exert broad influence over the insurance industry and its proposed mergers, as the Justice Department tried to block a takeover of Humana by Aetna and Anthem’s acquisition of Cigna.
Sessions hasn’t been a particularly vocal critic of Obamacare, as healthcare policy hasn’t been a big point of focus for the Alabama senator. But like just about every other Republican, he’s gotten behind efforts to undermine the law, in 2013 co-sponsoring legislative to defund it.
It’s less clear where Trump Treasury Secretary Steven Mnuchin stands on the healthcare law, since he has said less about it than some of the others. But if he chose, he could have a massive influence over how the law’s subsidies are doled out, since they are processed by the IRS. For example, Treasury could refuse to award the cost-sharing subsidies next year, citing the ruling requiring an appropriation from Congress.
Incoming Commerce Secretary Wilbur Ross and incoming Environmental Protection Agency Secretary Scott Pruitt would have less say over the Affordable Care Act in their respective posts. But they, too, bring a legacy of criticizing the healthcare law, contributing to an overall anti-Obamacare environment in the Trump administration.
“What it says is there will be a lot less argument across the Cabinet about the general issues,” said Joe Antos, a healthcare policy scholar at the American Enterprise Institute.
As Oklahoma attorney general, Pruitt led one of several lawsuits against the IRS over how it was awarding Obamacare insurance subsidies. Pruitt and others said the text of the Affordable Care Act prohibited the IRS from awarding subsidies to consumers in Oklahoma and other states relying on the federal healthcare.gov website instead of running their own marketplaces.
A federal judge uphold Pruitt’s case, although the Supreme Court later dismissed the challenges in its high-profile King v. Burwell ruling. But Pruitt made his mark as one of the most active Republican attorneys general resisting the healthcare law.
And Ross, a private equity billionaire, told CNBC in 2013 he doesn’t see why “any sensible young person who’s healthy would sign up” for marketplace coverage.
