The ACA and Medicaid are threatened by President Trump’s Day One actions
On his first day in office, President Trump issued a number of executive orders. One of them revoked the executive orders of President Biden. These included several Biden era orders relating to the implementation of Medicaid Act and Affordable Care Act. President Trump instructed the Directors at the White House’s Domestic Policy Council (WPC) and National Economic Council (NEC) to review all actions that were a result of the revoked order and take any necessary steps to rescind or replace them. By March 6th, the Directors must provide the President with an additional list of Biden-era orders and other actions that he should revoke, as well as a list of replacement orders, memoranda, or proclamations.
While executive orders on their own cannot change the law of the land or create or rescind regulations, they can signal an Administration’s intent and guide and direct federal agency policy and other actions. They can also create confusion about current rights and promote implicit legal violations. In this blog post, I explore what President Trump’s revocation of prior executive orders and a companion executive order could mean for Medicaid and the ACA.
Executive Order 14009: Strengthening Medicaid and the Affordable Care Act (2021)
President Trump revoked Executive Order 14009, in which President Biden stated his Administration’s policy to protect and strengthen Medicaid and the ACA and to make high-quality health care accessible and affordable for all. President Biden’s executive order directed the Secretary of U.S. Department of Health and Human Services to review all existing regulations and policies to determine if they are in conflict with the policy and, if not, to consider suspending, revising, or rescinding them. The Centers for Medicare and Medicaid Services began withdrawing approval for SS1115 waivers that were being used to test Medicaid’s work requirements a month later. He also directed HHS that it would address policies and practices which could create unnecessary barriers for people to access Medicaid or ACA insurance, including mid-year enrollment, reduce affordability or financial assistance, or undermine the Marketplaces, individual, small group or large group health insurance market. President Trump’s revocation of Executive Order 14009 signals that we could see a number of forthcoming agency actions to undermine the objectives of the Medicaid Act and the ACA.
Executive Order 14070
: Continuing to Strengthen Americans’ Access to Affordable, Quality Health Coverage (2022)In Executive Order 14070, President Biden outlined his Administration’s actions taken pursuant to Executive Order 14009, such as reducing “paperwork burdens” for Medicaid and marketplace plan enrollment, lowering maximum out-of-pocket costs, and implementing the American Rescue Plan Act. He instructed agencies to find ways to continue expanding access to affordable, comprehensive and quality health insurance. It included policies and practices to make it easier for people to enroll, understand, select, and maintain coverage, improve access to providers, improve coverage comprehensiveness, protect people from low quality coverage, expand eligibility and lower costs, reduce medical debt, and improve links between the health care and social services systems. The President’s decision to rescind the executive order confirms that we should expect future attacks on policies and procedures that promote access Medicaid and Marketplaces. This could include reversing provisions of the Medicaid eligibility and enrollment rule for 2024, which addressed administrative challenges that prevented people from enrolling in coverage or remaining enrolled. It could include attacking the Medicaid Access Rule, which included many reforms to improve accessibility to care, including community and home-based services for people who have disabilities. Of note, the House Ways and Means Committee included statutory repeal of these rules in their draconian spending cut menu for reconciliation.
Executive Order 13988
: Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (2021)On the first day of his Administration, President Biden issued Executive Order 13988, directing agencies to review all actions, including regulations, that implement legal protections against sex discrimination. He asked them to assess and take necessary actions in order to fully implement these protections in accordance with the Supreme Court’s ruling that sexism includes discrimination based upon sexual orientation and gender identification. Bostock v. Clayton County, (2020). His executive order directly affected implementation of SS1557 of the ACA. This was the first federal law that prohibited sexism in health care. The HHS published a new rule in 2024 that clarified and expanded on the Obama-era regulations regarding SS 1557. This included, among other things, the law’s protections for sexism. The final rule affirmed that these protections cover discrimination related to gender identity, sexual orientation, pregnancy or related conditions, sex stereotypes, and sex characteristics, including intersex traits.
President Trump not only revoked Executive Order 13988, he issued a
companion executive order that radically ends the executive branch’s recognition that transgender, nonbinary, and intersex people exist. In a future blog, NHeLP will explain how its definitions of “biologically different” sexes are not just scientifically inaccurate, reductive and baseless but also silently and insidiously incorporate anti-abortion language into federal policy. This language signals a coming administrative attack on reproductive rights. It also signals the implementation of SS1557’s pregnancy related nondiscrimination provisions. The authoritarian directive directs federal agencies not to recognize gender identity in any policies, regulations or other messaging and to enforce “sex protective laws to promote this fact.” This order is a disinformation campaign and misappropriation of civil rights laws, such as SS 1557, to regulate and police the gender. The President must be updated by the agencies on implementation no later than May 20th, . The order also directs the Assistant Secretary to the President for Legislative Affairs to draft and report back with bill text that would codify the definitions in this order by February 19th.0 Further, the order directs the Assistant Secretary to the President for Legislative Affairs to draft and report back with bill text that would codify the definitions in the order by February 19th.
Other Revoked Executive Orders that Implicate Medicaid and the ACA
President Trump revoked a number of other executive orders related to health care access. Again, his actions do not change current law or regulations.
- O. 13986 (2020): Ensured a lawful, accurate enumeration in the Census which helps determine federal and state funding of health care programs like Medicaid. 14031
- (2020): amongst other directives, promoted equity in health care for Asian American, Native Hawaiian and Pacific Islander Communities by promoting data disaggregation, and addressing access barriers to language. 14012 (2021): directed agencies to review and consider the effects of all agency actions related to implementation of the public charge ground of inadmissibility and related ground of deportability, and identity actions to address their effects on the public’s health (e.g., the Trump-era rule’s chilling effect on Medicaid enrollment and health care utilization).
- O. The 14075 (2020) directive directed HHS, among other things, to use legal authority to protect LGBTQI+ people’s (including children’s) access to health services, including gender affirming, sexual, reproductive and mental health, from harmful laws and practices. 14094
- (2023): modernized the regulatory process by promoting equitable input from underserved communities, strengthening regulatory analysis to recognize distributive impacts and equity, and directing OMB to revise Circular A-4 to implement these policies.What’s Next
- President Trump’s day one executive orders not only signal the return of regulatory and administrative horribles that his first Administration wrought for Medicaid and the ACA, they reflect a deep commitment to the same extremist and authoritarian ideologies that shaped the far-right’s Project 2025 playbook. NHeLP will fight against harmful administrative action and legislation. We will defend, enforce, and protect legal rights to affordable and high-quality health care that is non-discriminatory and affordable under the Medicaid Act, ACA and civil rights laws.