On the first day of his second Administration, President Trump issued numerous executive orders, including one that revoked a myriad of President Biden’s executive orders. These included several Biden-era orders related to implementation of the Medicaid Act and Affordable Care Act (ACA). President Trump instructed the Directors of the White House’s Domestic Policy Council and the National Economic Council to review and take all necessary steps to rescind, replace, or amend all actions that resulted from the revoked orders. 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 sow confusion regarding current rights and implicitly promote 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 order directed the Secretary of the U.S. Department of Health and Human Services (HHS) and other agencies to immediately review all existing regulations, guidance, policies, and other actions to determine whether they are inconsistent with that policy and, if so, consider whether to suspend, revise, or rescind them.
In particular, President Biden charged HHS with addressing demonstrations and waivers, as well as related policies, that risk reducing coverage or otherwise undermine Medicaid and the ACA. A month later, the Centers for Medicare and Medicaid Services (CMS) began to withdraw approval for § 1115 waivers to test Medicaid work requirements. He also directed HHS to address policies and practices that could present unnecessary barriers to people trying to access Medicaid or ACA coverage, including for mid-year enrollment; reduce the affordability of coverage or financial assistance for coverage; or undermine the Marketplaces or individual, small group, or large group health insurance markets. 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 directed agencies to identify ways to continue to expand access to affordable, comprehensive, and quality health coverage. This included policies and practices that make it easier to enroll in, understand and select, and retain coverage; strengthen benefits; improve access to providers; improve coverage comprehensiveness; protect people from low-quality coverage; expand eligibility and lower coverage costs; reduce medical debt; and improve linkages between the health care system and social services. President Trump’s decision to rescind this executive order affirms that we can expect forthcoming attacks on policies and practices that promote access to Medicaid and the Marketplaces. This could include rolling back provisions of the 2024 Medicaid eligibility and enrollment rule, which addressed numerous administrative challenges that blocked people from enrolling or staying enrolled in coverage. It could involve attacking the Medicaid access rule, which included numerous reforms to improve access to care, including home and community based services for people with 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 charged them with assessing and taking necessary actions to fully implement such protections consistent with the Supreme Court’s holding that sex discrimination encompasses discrimination based on sexual orientation and gender identity in Bostock v. Clayton County (2020). His executive order directly implicated implementation of § 1557 of the ACA, the first federal law to broadly prohibit sex discrimination in health care. In 2024, HHS finalized a new rule on § 1557 that restored and expanded upon Obama-era regulations, which (among many other things) clarified the law’s protections against sex discrimination. 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. As NHeLP will discuss further in a future blog post, its definitions of two “biologically distinct” sexes are not only scientifically inaccurate, reductive, and baseless, they also quietly and insidiously incorporate language from the anti-abortion movement into federal policy. That language signals incoming administrative attacks on reproductive rights, including implementation of § 1557’s pregnancy-related nondiscrimination protections. The authoritarian order directs federal agencies to remove any policies, regulations, or other messaging that recognize gender identity and enforce “sex-protective laws to promote this reality,” advancing disinformation and misappropriating civil rights laws (e.g., § 1557) to regulate and police gender. Agencies must update the President on implementation by May 20th. This order suggests that HHS will eventually propose a new § 1557 rule to (among other things) rescind regulations that clarify protections against sex discrimination, as it did during President Trump’s first Administration and consistent with Project 2025. 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.
- E.O. 13986 (2021): ensured a lawful and accurate enumeration and apportionment in the Census, which helps determine how to allocate federal and state funding for health care programs such as Medicaid.
- E.O. 14031 (2021): among other directives, promoted health care equity for Asian American, Native Hawaiian, and Pacific Islander communities by promoting data disaggregation and addressing language access barriers.
- E.O. 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).
- E.O. 14075 (2022): among other requirements, directed HHS to leverage legal authorities to protect LGBTQI+ individuals’ (including kids’) access to health care, including gender-affirming, sexual, reproductive, and mental health care, from harmful state and local laws and practices.
- E.O. 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 is ready to fight back against harmful administrative actions and legislation. We will defend and enforce legal rights to affordable, high-quality, and nondiscriminatory health care under the Medicaid Act, ACA, and civil rights laws.