Conservatives who railed against Barack Obama's vast powers to build up the Affordable Care Act declared vindication Saturday with President Donald Trump’s executive order to tear it apart.

"For me, it’s a mix of irony and schadenfreude," says Josh Blackman, a law professor who's written two books that criticized the Obama administration's implementation of the law. "I’ve warned for years that, with a new president in the White House, the exact same powers could be used for different purposes. That’s what we’re seeing now, to a T."


Trump's order, which encourages Health and Human Services, the IRS and other agencies to work toward dismantling the ACA, doesn't confer any new powers on the executive branch. But Trump explicitly instructs his agencies to use their existing powers to weaken the law “to the maximum extent permitted by law,” regardless of congressional action to repeal it.

That could be devastating to Obamacare because the Obama administration relied on its executive authority to set up the law.

"Its implementation depended critically — and depends critically — on rules and guidance that HHS and other agencies have put out," says Nicholas Bagley, a University of Michigan law professor who supports the ACA. "There are literally thousands of decisions that had to be made" by the administration — and "any decision that the Obama administration had the discretion to make, in principle, the Trump administration can revisit."

A big, complex law always requires a lot of the details to be filled in through regulation, but that was particularly true of Obamacare. The version that squeaked through the Senate in December 2009 wasn’t meant to be final; the bill’s authors’ expected to work with the House to smooth out language for a final version.

But when Republican Scott Brown won the Massachusetts Senate seat long held by Teddy Kennedy, the Senate Democrats lost their supermajority — and their chance to work out the kinks. That left a lot more for HHS and other federal agencies to fill in — which is now coming back to bite defenders of the law.

Many of the law's most controversial elements, like which Americans would be exempt from the mandate requiring most Americans to purchase insurance coverage, were administration decisions. Obama's HHS secretary was also empowered to flesh out the important details about the benefits that Obamacare insurance plans were required to cover, from mental health to maternity care. Even Healthcare.gov — the much-maligned website that turned into the linchpin of Obamacare enrollment efforts — was built out through executive authority.

The vast, and at times, legally questionable decisions undertaken by the Obama administration may also set precedent for the Trump administration to do the exact same thing. Both Blackman and Bagley agree the administration's 2013 decision to delay Obamacare's employer mandate was unlawful; House Republicans even sued, although their challenge was thrown out in court. Trump could now cite that delay as precedent for declining to enforce provisions that he dislikes.

The Trump administration could also issue a slew of waivers to exempt Americans from the ACA's individual mandate — although the Obama administration already broadened those exemptions in 2013, after the political outcry from Americans whose plans were canceled because they didn’t meet Obamacare criteria.

The "'like it, keep it' fiasco" set a precedent for Trump too, says Bagley.

At the time, the administration said it would give hardship waivers to Americans who had difficulties paying for coverage under the ACA. But "if you define the hardship as that, then every American is facing higher premiums because of the ACA, one way or another," says Blackman. “Obamacare is itself the hardship.”

House Republicans also sued and won an initial ruling over the Obama administration's payments to subsidize health care costs such as co-pays and deductibles for Obamacare enrollees under a certain income level. A federal court agreed the funds were illegally appropriated; the Obama administration appealed that decision. But Trump could discontinue the appeal, and hold that over Democrats in negotiations to replace the law: If he chooses to discontinue those payments, health insurers — which would be on the hook for those payments even if the government funding dried up — would probably flee the markets or jack up prices next year. Millions of ACA customers would likely see their premiums spike and their plans become unaffordable.

"If Trump were to stop the cost-sharing payments, he could send the individual insurance markets into an immediate tailspin," says Bagley. "It would be an extraordinary hit."

The Trump administration could also act quickly and issue less-dramatic guidance that maintains pieces of Obamacare but allows tweaks to make them more conservative.

The executive order issued by Trump just hours after his inauguration calls for giving states more power to shape health programs, and several Republican-led states have wanted to expand Medicaid but only if they could impose new restrictions, like requiring able-bodied beneficiaries to show that they were working or seeking employment, or to pay small premiums. The Obama administration had opposed these provisions, warning they would shift new costs onto the low-income Americans the program was meant to help.

“This is potentially quite significant to the extent that governors want to innovate their Medicaid programs,” says Lanhee Chen, former policy director for Mitt Romney’s 2012 presidential campaign. “But, ultimately, how far the action reaches will depend on whether President Trump is willing to use executive authority to gut Obamacare in the same way that Barack Obama used it to implement the law.”

Other elements of the law require more complex rule-making processes that would likely stretch a year or more. For instance, the Trump administration could revisit the 10 essential benefits now required to be covered through Obamacare health plans. Some conservatives want Trump to allow insurers to sell a mix of plans with less comprehensive coverage — but that would require a series of proposals and comment periods.

Paring back those benefits would make the ACA’s plans much less expensive. But it also would gut some of the protections conferred by Obamacare, like the mental health benefits that are currently covered in all plans.

"The Trump administration has to strike a delicate balance here," Bagley says. "If they don’t want to pull the rug out from under people, they have to be very cautious."

But the executive order makes "real policy commitments to providing regulatory relief — and those goals are in tension with each other,” he says.