President Donald Trump’s first executive order was issued on January 20, 2017, within hours of his inauguration, to establish his Administration’s policy “to seek the prompt repeal of the Patient Protection and Affordable Care Act”. Pending that repeal, the executive order directs the executive branch “to ensure that the law is being efficiently implemented, take all actions consistent with law to minimize the unwarranted economic and regulatory burdens of the Act, and prepare to afford the States more flexibility and control to create a more free and open healthcare market.”
Specifically, the executive order directs that, “to the maximum extent permitted by law, the Secretary of Health and Human Services (Secretary) and the heads of all other executive departments and agencies (agencies) with authorities and responsibilities under the Act shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.”
It also directs that, “to the maximum extent permitted by law, the Secretary and the heads of all other executive departments and agencies with authorities and responsibilities under the Act, shall exercise all authority and discretion available to them to provide greater flexibility to States and cooperate with them in implementing healthcare programs.”
However, the executive order acknowledges that many, if not most, of these executive actions still require compliance with ordinary regulatory procedures: “to the extent that carrying out the directives in this order would require revision of regulations issued through notice-and-comment rulemaking, the heads of agencies shall comply with the Administrative Procedure Act and other applicable statutes in considering or promulgating such regulatory revisions.”
While Presidents have the prerogative to issue executive orders directing executive branch action, this first executive order seems to be more a statement of policy rather than directing any specific executive action or changes in policy. Every directive is limited by “to the maximum extent permitted by [current] law” and “shall comply with…applicable statutes” and “this order shall be implemented consistent with applicable law and subject to the availability of appropriations.”
Ignatius Bau 