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Wednesday, November 9, 2016

The Election . . . and Obamacare . . . and the "Investment Advice" Fiduciary Regulation

Well, the Election was something, huh?  Or is it THE Election? 

Anyway, quite a while ago, I posted very early on that a Republican presidency would mean the end of Obamacare.  I was more than aware of those who said that it would be too hard to unwind, it would be too entrenched, it would be too beloved, it would be blah blah blah.  My suggestion was rejected roundly and dismissively. 

Frankly, that amazed me.  You have a statute that is intensely despised by a significant wing of the political party that controls Congress, with an enmity that is hard to describe.  And then there was the argument that it might take 60 Senate votes to undo it, and that the Senate would never climb that mountain.  Was no one following the bouncing ball?  People were running for President on a kill-Obamacare platform, and yet were to think that, if the Republicans win, Democrats in Congress would continue to fight that battle?  C'mon.

So now Trump wins, and he as much as anyone has savaged Obamacare.  Indeed, in the weeks leading up to the Election, he focused his ire on Obamacare and I think arguably his going on-message on this policy point, especially given the rumblings surrounding apparent upcoming premium increases, may have been a material factor in his win. 

So do we still think that Obamacare will survive this?  With both houses of Congress being Republican?  Pity the fool (thanks, Mr. T) who as a Democrat in Congress tries to slow down this particular train at this particular time.  On this (the Obamacare) point, can you say, "mandate"?

I suspect that there are going to be a lot of professionals doing a lot of retooling.  Start learning the new program, 'cuz the old one's gone.  It reminds me of when Section 89 was passed and then repealed, and of the friend of mine who authored a hard-bound treatise on the darn thing.  I'm not even sure that he still has a copy of that wonderful treatise (and it was wonderful).  Oh, well.* 

So, yes, I'm doubling down on my Obamacare prediction.  I give it half a year, and even that only because this thing has to be unwound carefully, and replaced by some new regime.

And, while we're at it, let's go to another prediction.  I'm going to suggest there that you'll never see the implementation of the DOL's incredibly controversial "investment advice" fiduciary regulation.  This is another one of Obama's personal-legacy things, and you just have to imagine Trump going after it.  Plus, this one's an easy target.  There's no careful unwinding, no replacement regime to craft, no nuancing about which to worry.  You simply announce you're getting rid of it, freeze enforcement while that's proceeding, and then eventually discard the carcass. 

When it comes to Obamacare and the fiduciary reg. - Trump's bat, Trump's ball, game over.**  Those're my predictions, and I'm sticking to 'em.


* I remember getting an AARP New Year's card for 1989 showing Father Time pushing 1989 over the cliff.  But on a close peek it wasn't '89 he was pushing over the cliff, it was 89 - Section 89!  SO clever!  Can't believe I didn't save that thing.

** Alice Cooper's "Elected" reverberates in my head. 

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