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Executive Authority to Reform Health: Options and Limitations: Legal Solutions in Health Reform

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Publication Date: March 2009

Publisher(s): O'Neill Institute for National and Global Health Law, Georgetown Law, Washington DC; Robert Wood Johnson Foundation

Author(s): M. Chugh

Topic: Law and ethics (Health law)

Keywords: Policy reform ideas; Innovation; Role of Medicare/Medicaid

Type: White Paper


This paper reviews the authority that President Obama and the administration can exercise within constitutional and statutory boundaries to promote health reform.

The president can use his executive authority and administrative tools to reform health care incrementally without congressional approval. Under current law, the administration can:
1) promote its policy goals through demonstration projects;
2) increase the use of health information technology;
3) reduce drug costs;
4) increase coverage portability; and
5) expand SCHIP eligibility.

The administration does not, however, have the unilateral power to establish a national health insurance exchange, create a new small business health tax credit, or require employers to "pay-or-play."

Although the president's executive authority could allow him to begin implementing crucial reforms, he also must pay careful attention to legal, budgetary, and legislative constraints on that authority. This paper contains examples of ways that the new administration can take incremental steps toward health care reform. There are many opportunities for using the president's executive authority and administrative tools to lay the foundation for more expansive health reform.