Dan Haar: Executive Orders Fit For A King, In Obamacare And Immigration

Jan. 26--Now that President Donald Trump has advanced from Twitter to the executive order, we might be tempted to think he's governing instead of continuing to campaign.

Not exactly, based on at least two early Trump decrees -- the one that supposedly pulls back on Obamacare and the two head-scratchers the White House issued Wednesday on immigration and sanctuary cities.

Both executive orders fulfill Trump election vows. Both look like they give clear directives -- if you're only reading headlines and don't need to actually follow Trump's orders, or if you're in middle school.

But both neglect to do the one thing we need in a presidential order, which is to clearly and legally state what a federal agency must or must not do. Instead we have Trump creating exactly the sort of confusion, exhibiting exactly the sort of weakness, that candidate Trump loved to slam.

The worst is the Obamacare order, which Trump signed the night of his inauguration. It says agencies such as the IRS and Health and Human Services can give exemptions to any person or group, for "any provision or requirement of the Act that would impose a fiscal burden."

That sounds good in a bar if you've had a few drinks but legally, it's pablum. Executive orders can't undo laws, and this law already allows for limited exemptions.

Instead, the executive order raises vast questions about where it might lead.

"The order itself is a non-order," said Sen. Richard Blumenthal, D-Conn. "Few executive orders sow deep and broad confusion among consumers in the fundamentally misguided way this executive order does ... As a business person Donald Trump should know the great enemy of business is uncertainty and unpredictability."

This confusion isn't hypothetical and it isn't harmless.

Bruce Campbell, chief medical officer at C.M. Smith Agency, a commercial benefits consulting firm and brokerage that is part of Alera Group, said the worries extend even to large companies whose employees are not typically buying coverage through Obamacare exchanges.

"Clients start calling us saying, 'What does this mean for me?' They're self-insured, and there are a number of provisions in ACA that would directly impact them," said Campbell, a former chief medical officer at Aetna.

The answer, for them and for millions of Americans whose health coverage depends on Obamacare, is no one knows -- again, exactly the opposite of what an adult executive order needs to provide.

In one way of seeing it, the IRS can stop charging the so-called Cadillac tax on high-end plans, and stop imposing a penalty on people who don't have insurance. Trump is clear that he doesn't like those things.

But the IRS and other agencies would have to rewrite rules. In the months that would take, followed by the months of lawsuits by insurance companies that need the mandate in order to keep prices under control, Congress is likely to change the law.

If you think prices are high now, wait until healthy 20- and 30-somethings skip out on the individual market. That would lead to what Larry Levitt, a senior vice president and Obamacare expert at the Kaiser Family Foundation, calls a death spiral for the whole system.

The Aetnas and Cignas of the world agree, though they're not talking about Trump's order. Maybe they have enough juice to knock some sense into this president. They did win over former President Barack Obama on key provisions after he ripped into them as a candidate.

Until then, they're forced to act in a way that could unwind some benefits even before Congress does pass a new law, as they try to read Trump's murky tea leaves. Their new plans are due to states in early spring.

We get that Trump wants to end Obamacare overnight. He's in a hurry to prove the added taxes, rules and costs are not worth providing preventive care to everyone and health coverage to 22 million people who didn't have it before.

That's a fair debate. Trump is wrong, but that's not the point. He won and the Democrats lost. The point is that he's turning an already difficult transition into chaos because of his childish need to act decisively "on Day 1."

"It's kind of a ruse for his supporters, for him to say 'I'm doing something,'" Blumenthal said. "And in a way it's kind of painless because nobody is deprived of insurance."

Painless for now. The Republican replacement plans for Obamacare all rely on some combination of funding cuts, Medicaid payment caps and coverage limits. Everyone might have insurance, but many who aren't rich, especially women and people in higher-cost states, will have much less of it.

The immigration order Trump signed Wednesday has its own set of conundrums designed to look like action. Consider just one: stripping federal aid from sanctuary cities and states, which supposedly protect undocumented immigrants from federal prosecution.

One little problem: the order asks the Department of Justice to figure out what a sanctuary city is, and the department can't do that because there is no definition.

In fact, Obama's Justice Department, less zealous than Trump's is likely to be, already showed how much it can botch that up by declaring in 2016, falsely, that Connecticut was breaking the law on protecting immigrants.

Obama was often criticized for executive orders that overreached, but they were clear, such as the ones protecting children of undocumented parents.

If Trump wants to radically change health and immigration, he needs to propose legislation and get it adopted, or deliver targeted directives to his bureaucracy. Only a king can order sweeping change on his own, and Trump isn't a king, though he doesn't seem to understand that.

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