Excerpt from Professor Jost's post on Health Affairs Blog:

On November 8, 2016, in a stunning upset, Donald Trump was elected president of the United States. The Republican Party, under whose banner he run, retained control over both the House and Senate. President Trump will be able to appoint at least one Supreme Court justice almost immediately and possibly more during his term in office. He will also appoint dozens of district and appellate court judges. Finally, he will presumably replace the cabinet secretaries and most of the political appointees in the Departments of Health and Human Services, Labor, and Treasury — that administer the Affordable Care Act. The Republicans own the national government, and many state governments. 

So what does his victory mean for the Affordable Care Act? This post is a tentative first pass at this question. ...

Is a Complete Repeal Possible?

Donald Trump states at his website, “On day one of the Trump Administration, we will ask Congress to immediately deliver a full repeal of Obamacare.” If by "Obamacare" Trump means the Affordable Care Act in its entirety, this will not happen. First, any repeal proposal would be subject to a filibuster in the Senate and the Democrats retain more than enough votes to stop a repeal bill. Second, the Affordable Care Act contains hundreds of provisions affecting Medicare, program integrity, the health care workforce, biosimilars, prevention, and other issues unrelated to what most Americans think of as “Obamacare.” Immediate repeal of the ACA and presumably restoring the law that preceded it would likely bring the Medicare program, for example, to a halt until new rules could be written. The ACA is inextricably interwoven into our health care system and is not going away immediately.

The Uses And Limits Of The Budget Reconciliation Process

Congress and the President, can, however, repeal many of the provisions that are identified by the public as “Obamacare” using the budget reconciliation process. A budget reconciliation bill can be passed by a simple majority and cannot be stopped by a filibuster. The final ACA in 2010 contained provisions passed through the budget reconciliation process after the Democrats lost their filibuster-proof majority. 

Budget reconciliation legislation is subject to strict procedural and substantive limits. Reconciliation in the Senate can only contain provisions that affect the revenues and outlays of the United States and cannot contain “extraneous provisions” that only incidentally affect revenue and expenditures. Budget reconciliation is a two-step process—first Congress adopts a budget resolution with instructions to committees to meet reconciliation targets and then it adopts the reconciliation itself. This cannot happen on “day one.”

Congress took a dry run at repeal budget reconciliation legislation in 2015. Both houses of Congress passed reconciliation legislation that would have repealed the premium tax credits; the small business tax credit; the individual mandate, the employer mandate; presumptive eligibility, maintenance of effort, and benchmark plans for Medicaid; and the ACA’s taxes—the medical device tax, insurer fee, “Cadillac” high cost plan tax, and tax increases imposed on the wealthy—most of the provisions that the public identifies as “Obamacare.” The legislation was vetoed by President Obama. The legislation would also have defunded Planned Parenthood. Presumably this legislation, already vetted for compliance with reconciliation requirements, could serve as a model for ACA repeal.

Importantly, reconciliation legislation could probably not change the insurance reform provisions of the ACA—the ban on preexisting condition exclusions and health status underwriting, caps on annual and lifetime dollar limits, actuarial value requirements, age underwriting restrictions, as they do not affect revenues and outlays. The continued imposition of these requirements without the financing provided by the ACA could cause serious distortions and damage in insurance markets. It is possible that changes to other sections of the ACA could be made part of other “must pass” legislation, although it is hard to see what that might be.
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What President Trump Could Do on His Own to Undermine the ACA

... Regulations cannot legally be changed without an opportunity for notice and comment and some explanation as to why a change is necessary. Guidance is easier to change.

Indeed, a Trump administration could do a great deal of damage to the ACA without even changing regulations or guidance. If a Trump administration simply stopped implementing or enforcing certain regulatory requirements, there might be little that could be done about it. Just a change in leadership in the agencies implementing the ACA will cause months of disruption, and appointment of leadership committed to destroying rather than implementing the ACA will likely cause a mass exodus of lower level employees, causing an implementation vacuum.
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A number of insurers have lost money in the marketplaces. Some have withdrawn and others have stuck with the program in hopes it would turn around. Without an administration committed to the program, more will almost certainly withdraw, potentially leaving parts of the country where no marketplace plans are available. Others might raise their rates in the face of the uncertainty caused by the transition, making coverage even less affordable to individuals without premium tax credits.

A Trump administration is likely to work with conservative states to loosen remaining ACA requirements. Under section 1332 states can be granted “innovation” waivers from many ACA requirements if they can provide similar coverage under their own proposals. The Obama administration has interpreted the requirements of this provision quite conservatively, but Trump could give out the waivers much more loosely to allow states to opt out of the ACA. Trump has also proposed block-granting Medicaid, a proposal that would shift much of the burden of Medicaid financing to the states. Republicans believe that the flexibility afforded by block grants could allow states to innovate and run Medicaid more cost-effectively, but millions of Americans could lose Medicaid coverage if the block grants do not keep pace with costs.
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The Obama administration is currently involved in a number of lawsuits involving the ACA. A Trump administration might simply cease defending these lawsuits, effectively allowing the plaintiffs to triumph. If the government withdrew its appeal in House v. Burwell, for example, reimbursement to insurers for cost-sharing reduction payments could cease. Indeed, the administration could simply stop paying cost-sharing reduction payments, although this would probably take a rule change. Ending cost-sharing reduction payments would dramatically increase the cost of marketplace participation by insurers and likely lead to many insurers exiting the program. It is possible that beneficiaries or insurers could sue to reinstate the payments, but that would take time, and would likely not happen quickly enough to save the program.

The administration will also likely cease defending the contraceptive cases, indeed may likely revoke the contraceptive coverage requirement. And it will likely take a more aggressive position opposing the insurer risk corridor cases in the court of claims.

It is possible that consumer and insurer groups will file lawsuits against the administration seeking to force implementation of provisions of the ACA that remain in place. This litigation could take the place of the anti-ACA litigation the administration has fought for years. Litigants may follow the path of ACA opponents and find sympathetic district court judges in isolated districts in liberal circuits looking for easy victories. A Trump appointed Supreme Court will make progressive litigation victories harder to stick.
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This excerpt is reprinted with permission and is subject to the Health Affairs Blog terms of use. 

Prof. Timothy Jost, Day One And Beyond: What Trump’s Election Means For The ACA, Health Affairs Blog, November 9, 2016, http://healthaffairs.org/blog/2016/11/09/day-one-and-beyond-what-trumps-election-means-for-the-aca/. Copyright ©2015 Health Affairs by Project HOPE – The People-to-People Health Foundation, Inc.