Executive orders (EOs) are confusing. They can be meaningful or meaningless, explicit or vague. They can be upheld by one court and overturned by another. Sometimes EOs create tangible policy changes and sometimes they are issued purely for political messaging purposes. Some EOs create permanent policy, while others are quickly reversed by future presidents.

Yet despite their mixed effectiveness in creating actual policy change, they have the critical advantage of not needing approval from Congress, which is perhaps one reason President Trump and his administration have issued a record 142 executive orders in their first 100 days, surpassing President Franklin D. Roosevelt’s previous record of 99.

America is (and hopefully always will be) a rules-based society. At the core of our system is the United States Constitution, which, amongst many other things, grants Congress the ability to create laws. As the foundation of all rules that come after, the Constitution is exceptionally hard to amend by design. Laws, as Congress frequently demonstrates, are also very difficult to pass, but are clearly easier to amend than the Constitution.

In order to implement our nation’s laws — many of which are not specific enough to apply to real situations, such as Medicare policy — the executive branch creates regulations through a formal rulemaking process to flesh out how laws will apply to society.

Yet even here, regulations often lack the specificity and detail necessary to fully implement the policy and rules of the government, such as what is the proper billing code or billing modifier to use. Thus, the agencies will also create sub-regulatory guidance to fill in those details. Guidance is the easiest layer of rules for an agency to change.

In theory, guidance cannot change regulation, regulations cannot change statutes, and statutes cannot change the constiution. EOs fit right in the middle of this hierarchy. While they cannot change the law and they certainly cannot change the Constitution, they can have considerable sway over regulations and guidance — and thus the impact of a policy — at least under that current administration. Oftentimes EOs order the secretary of a department to promulgate regulations with a particular goal in mind.

Sometimes EOs, or the resulting regulation and guidance, can have major real-world policy outcomes that may seem contrary to the underlying law. Disputes over whether or not an EO is lawful or unlawful often end up in court. In these instances, the judiciary plays a key role in refereeing what is allowed and interpreting the parameters of the constitution, law, and regulations of our country.

If we look at a few examples in healthcare, we can see some of the various ways EOs impact policy.

The EO withdrawing the United States from the World Health Organization (WHO), is an example of an explicit EO with a tangible policy outcome: the United States is no longer part of the WHO. However, the law is unclear on whether or not the President has this authority. The Congressional Research Service explains:

While domestic law authorizes U.S. withdrawal, it is less clear about whether the President has the authority to make the decision to withdraw without congressional approval. U.S. law also requires the United States to continue paying WHO assessed contributions after making the decision to withdraw through the end of the WHO's fiscal year, calling into question whether President Trump's decision to suspend funding comports with legislative requirements.

While there were initially rumors that the O’Neill Institute for National and Global Health might bring a lawsuit challenging this EO, to date no entity has filed a lawsuit and the withdrawal stands.

Another order, “Expanding Access to In Vitro Fertilization,” simply directed the Assistant to the President for Domestic Policy to submit a list of policy recommendations on improving in vitro fertilization (IVF) access and reducing costs. Unlike withdrawing from the WHO, this order is clearly within the President’s authority. While the order itself does not change policy in any way, it does serve a political and messaging purpose by allowing the president to proclaim his support for IVF.

A third EO, “Making America Healthy Again by Empowering Patients with Clear, Accurate, and Actionable Healthcare Pricing Information,” serves primarily to communicate the president’s expectations surrounding regulatory and enforcement discretion of price transparency rules to the public and his cabinet secretaries. This order is unlikely to be challenged in court, given that the underlying statutory authority for price transparency is rooted in the Affordable Care Act and was expanded at the end of the first Trump Administration with the passage of the No Surprises Act. 

While the order contained no details surrounding how the secretaries should bolster price transparency rules and enforcement, it directs the Departments of Health and Human Services, Treasury, and Labor, to:

(a) require the disclosure of the actual prices of items and services, not estimates; 
(b) issue updated guidance or proposed regulatory action ensuring pricing information is standardized and easily comparable across hospitals and health plans; and
(c) issue guidance or proposed regulatory action updating enforcement policies designed to ensure compliance with the transparent reporting of complete, accurate, and meaningful data.

Whether this clarity of direction translates to tangible and effective policy is an open-ended question. Presenting healthcare pricing information in a way that makes sense to consumers is a tall order.

Ultimately, executive orders represent one tool in a president’s toolkit to enact policy change or underscore a political message. While they can have their limitations, such as being bound to current law, they are easy for a president to issue and, if the circumstances are right, have the potential to create very meaningful policy change.