Trump Administration And Democrats Return Health Law To Political Center Stage

By Julie Rovner, the Robin Toner Distinguished Fellow, is Chief Washington Correspondent for Kaiser Health News. Previously, she worked for NPR, National Journal’s Congress Daily and for Congressional Quarterly on health policy. She is also the author of the critically praised reference book Health Care Politics and Policy A-Z. Originally published at Kaiser Health News

“The Mueller Report” is so last week’s news. Health care has returned in force as the dominant political issue in Washington, reflecting what voters have been telling pollsters for the past year.

The Trump administration moved Monday night to get more in line with President Donald Trump’s voter base by endorsing a Texas federal judge’s December opinion that the entire Affordable Care Act should be struck down as unconstitutional.

After he arrived at the Capitol for lunch with Republican senators Tuesday, Trump endorsed the change, suggesting it will usher in Republican priorities instead. “The Republican Party will soon be known as the ‘party of health care!’” he told reporters.

Less than two hours later, House Democrats unveiled their proposals to not only protect the health law, but also expand it — including extending help paying premiums and other costs to families higher up the income scale than those now eligible and reinstating cuts made by the administration for outreach to help people sign up for coverage.

Speaker Nancy Pelosi said that, since taking control of the House in January, Democrats have been fighting to preserve the health law and “voted on Day One” to file a motion in the Texas court case to support the ACA.

The arguments are a return to one of the key battles during the 2018 midterm elections. Democrats hammered their Republican opponents on the GOP’s two-year efforts to repeal the ACA — and especially its popular protections for people with preexisting medical problems and Medicaid expansion — and credited those attacks for big gains the party scored in the House and legislatures around the country.

House Majority Leader Steny Hoyer said those Democrats were elected to “protect and expand” the health law. He warned Republicans not to undermine it, saying, “Americans don’t want to see the ACA protections undone.”

The new filing in the Texas case marks an about-face for the Justice Department. The Republican attorneys general and governors who brought the case argued that when Congress zeroed out the tax penalty for people who lacked health coverage as part of the 2017 tax bill, the entire Affordable Care Act was rendered unconstitutional. In December, U.S. District Judge Reed O’Connor agreed with them, although he put his ruling on hold while the case is on appeal.

At that time, the Justice Department did not endorse the GOP plaintiffs’ argument. It suggested instead that the elimination of the tax penalty should invalidate only those parts of the health law most closely associated with it — notably, the provisions requiring insurance companies to sell to people with preexisting conditions and not charge them more.

The health law is being defended by a group of Democratic attorneys general, led by California’s Xavier Becerra. They filed their brief Monday night, just before the Justice Department issued its position change.

“The Affordable Care Act is landmark legislation that has transformed the nation’s healthcare system,” said the brief. Striking it down “would strip existing healthcare coverage from millions of Americans” and “it would make a mockery of the dramatic votes in which the same Congress rejected earlier efforts to repeal or substantially revise the ACA.”

The Department of Health and Human Services declined to comment on the change of position, which was filed as part of the appeal process. Kerri Kupec, a spokeswoman for the Justice Department, said the department “has determined that the district court’s comprehensive opinion came to the correct conclusion and will support it on appeal.”

Trump has repeatedly called for the law to be repealed and replaced, but when Republicans controlled Congress they could not muster the necessary votes. Just last week, the president lashed out Sen. John McCain (R-Ariz.), who died in August, for failing to support that effort.

If the law is invalidated, it would not only directly affect the 11 million people who purchase insurance through the ACA marketplaces, but also millions of low-income people who gained coverage under the expansion of the federal-state Medicaid health program. The Urban Institute estimates full repeal would result in nearly 20 million more uninsured Americans.

The ACA also includes substantial changes to the Medicare program, extends protections to people with employer-provided insurance and includes such seemingly unrelated provisions as requiring calorie counts on restaurant menus and making it easier to make generic copies of expensive biologic drugs.

Health analysts warn that the law is so embedded into the fabric of the nation’s health system that eliminating it could have consequences well beyond the things it created.

“The act is now part of the plumbing of the health-care system,” wrote University of Michigan law professor Nicholas Bagley in a post for the Incidental Economist website. “Which means the Trump administration has now committed itself to a legal position that would inflict untold damage on the American public.”

Democrats, who already had their health event scheduled for Tuesday, were quick to pounce on what they see as a GOP weakness.

“In two short sentences, the Trump administration crystallized its position that the health care coverage enjoyed by nearly 20 million people, as well as the protections by tens of millions more with preexisting conditions, should be annihilated,” said Senate Minority Leader Chuck Schumer on the floor Tuesday morning.

Democratic presidential candidates also voiced their opposition.

“I’ll say it for the zillionth time: We will not let the Trump administration rip health care away from millions of Americans. Not now. Not ever,” tweeted Sen. Elizabeth Warren (D-Mass.).

Sen. Kamala Harris (D-Calif.) said in an interview on MSNBC that health care is “one of the biggest most critical issues facing American families. the existence of preexisting conditions and that being a barrier to people having access to health care. We decided as a nation” that it was wrong, she said, to deny someone with a preexisting condition access to health care, and that the Republicans’ latest move amounts to “playing politics with people’s public health.”

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  1. Henry Moon Pie

    “The act is now part of the plumbing of the health-care system”

    If Trump succeeds with his legal gambit, it will eliminate the above as an argument against M4A. We can be sure that the liberals had it teed up and ready to go. “Now is not the time to completely scrap a system that is working so well for so many people.”

    And if Trump and the Republicans are going to replace after they couldn’t repeal, what a nice comparison that will make for M4A.

  2. The Rev Kev

    I’ll see if this take rings true. So on one side you have Trump & the Republicans wanting to finally get rid of Obamacare. Trump because it is the worst thing that he could personally do to Obama by removing what may have been his only real success (of sorts) in office and the Republicans because they believe that the only people that should have health care are the people that have the money to actually pay for it. On the other side is the Democrats who will defend what is essentially a modified Romneycare but with the serial numbers filed off. Behind them is the health care industry and big pharma whose profits are on the line.
    Playing amateur psychologist here (very much so), this may have come at the worst possible time. So many people are disorientated after the Meuller Report came back with zip when they had tied their emotional identities to a conviction and impeachment of Trump that they are confused and angry. Now you have this issue arising which seems to be a black-and-white issue of fighting Trump over their healthcare to grasp unto. Thus they will now anchor their emotional identities with Obamacare. What will happen is that the ‘adults’ in the room on both sides of the aisle will come up with a compromise which amounts to an even crappier version of Obamacare.
    And the tragedy is that by all this happening, there will be no consideration of dumping the present healthcare system at all – which is ranked the worse in the developed world – and adopting literally any other system out there to replace the present monstrosity. It will be either Obamacare or nothing and that will be the end of it. And both parties will be happy with that outcome.

    1. ChiGal in Carolina

      Ugh, sadly that seems a pretty good read… unless the grass roots stay focused and demand that their legislators do the same. M4A has to be a litmus test.

    2. CarlH

      “modified Romneycare but with the serial numbers filed off”.

      I really love this description. Thank you for the moment of levity.

  3. oaf

    …If the ACA is found to be unconstitutional; will those who paid $ penalties $ for non-participation be compensated???

  4. John

    The irony would be that if Obamacare is eradicated it may make M4A easier to pass. M4A’s biggest hurdle may be the barely good enough ruse that Obamacare is. If the predatory health insurance industry is crushed, it will be difficult to get it going again. With Obamacare the industry persists and will always be a voice for extracting higher rents.

    1. DHG

      ACA removal collapses the entire insurance delivery markets. The people will be demanding immediate action or else.

  5. voteforno6

    Great. Now the Democrats are going to use this as another bait-and-switch for single payer / Medicare-for-All.

  6. Matthew G. Saroff

    Mixed emotions.

    If the Trump Administrations attempt is successful, it will harm millions, but the blowback will kill the Republicans in 2020, it will increase the push for Medicare for All, and (and this is me being petty) it will knock the wheels out from under Obama’s historical legacy.

    Kind of like your mother in law driving of a cliff in your brand new car.

  7. Phil in KC

    Why this, now? Seems an abrupt pivot from all the Build the Wall and Mueller business of the past few weeks.

    The reason the Republicans haven’t done Repeal and Replace is because they don’t have the Replace, except for some tired old schemes involving tort reform, limited vouchers, and some finagling with the tax code. Is anyone asking any Republicans what the Replacement plan is?

    I would be surprised if the voters of the upper Midwest and Pennsylvania who made Trump’s election possible are demanding fewer protections for the middling classes. ”

    “Middle class” once was a synonym for “security.” No longer!

    1. marym

      It seems to be a Trump personal pivot, not a coordinated decision among Republicans.

      White House Obamacare reversal made over Cabinet objections
      The heads of the Justice Department and Health and Human Services Department opposed the unexpected switch in legal tactics.

      Republican senators offered differing responses to the administration’s new court filing, though none offered support for throwing out all of Obamacare without a ready replacement for its most popular elements.

      Reflecting widespread concerns within his party, House Minority Leader Kevin McCarthy has told President Trump he disagrees with the Trump administration’s attempt to get the entire Affordable Care Act thrown out in court.

      McCarthy told Trump over the phone that the decision made no sense — especially after Democrats killed Republicans in the midterms in part over the issue of pre-existing conditions, according to two sources familiar with their recent conversation.

  8. Cat Burglar

    There is zero consideration in the article of the position of the health insurance, hospital, medical equipment, and pharma lobbies on this issue. Their subsidies are what is in “the plumbing” of the ACA health care system. Was it too much work for the author to call them up to find out what they want? Why should the most powerful interest groups remain invisible in this account? What deals are being done?

    1. marym


      We said before that the district court’s decision was misguided and wrong. So, too, is the government’s reversal to now support it.


      In a statement today, AHA President and CEO Rick Pollack said, “America’s hospitals and health systems oppose the Department of Justice’s misguided decision calling on the courts to strike down the Affordable Care Act in its entirety.


      The Justice Dept’s recent position that the #ACA should be ruled invalid would take away critical #healthcare protections from millions of Americans.

      On behalf of our 38M members and all Americans 50+, AARP will continue to fight for the #ACA law in Congress and the courts.

  9. JimTan

    The timing of this new push to kill the ACA seems a little suspicious to me.

    One of the motivations for trying to kill Obamacare in 2017 was its ‘Net Investment Income Surtax’, which is one of the many taxes that hedge funds would have to pay after a loophole which allowed them to indefinitely defer taxes was closed. The ACA’s Net Investment Income Surtax, is basically a 3.8% tax on all investment income that is used to increase Medicaid’s coverage of people with low incomes. This timing seems suspicious because many tech Unicorns plan to go public and cash out their original investors this year, starting with Lyft’s IPO this Friday. Forbes estimates that if everything goes as planned with this years slate of tech IPO’s ( a big if ) then these IPO’s could create a $230 billion windfall for investors cashing out, and 6,000 new millionaires. Investors like Peter Thiel, who was a large Trump campaign donor and served on his transition team, stand to make lots of money and owe lots of taxes from these IPO’s.

    I think a 3.8% tax on investment income is very modest…..but who knows what others might think when you’re talking about billions of dollars.

  10. Susan the other`

    For the Rs to pretend to have a wonderful health care plan is absurd. For the democrats to pretend they are going to strengthen health care so everyone has “access” is equally absurd but more devious. For both parties to go after each other over health care in 2020 is a gift from god. The first pol who openly admits that capitalism cannot do certain things like healthcare because profits, will plant the evil seed of clear thinking. Both parties are disgusting. Both deserve to go down in flames.

  11. Arizona Slim

    Count me as an NC commentariat member who actually knows the writer of this piece. Yup, I went to the University of Michigan with Julie Rovner. Both of us were reporters on the Michigan Daily, the campus newspaper.

    Yves, thank you for posting this article. It brings back a lot of good memories of my time on the Michigan Daily. In a newsroom full of ambitious, and, dare I say, cutthroat student journalists, Julie was a genuinely nice person.

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