It’s baaaack. The battle over Obamacare in the news again.
It’s been a while, so here’s a crash course to refresh your memories. Or to fill you in, in case, you know, you were only 8 when the whole thing started. 🙂
The Patient Protection and Affordable Care Act (aka ObamaCare) has had a checkered history. Originally drawn up at the Heritage Foundation, a conservative organization, it became the target of Republicans when President Obama used it as the starting point for his negotiations over health care legislation in 2009. Why did he pick a conservative plan? Much to progressives’ dismay, he thought it would encourage Republican support. It didn’t work, which made progressives, who would have preferred a single payer plan (like Medicare) even madder.
What makes the ACA conservative is that it is market based, keeping private insurers in place, but regulating them, preventing them from capping people’s coverage, throwing people off their plans when they get sick, and denying them coverage for pre-existing conditions. It also allowed young people to stay on their parents’ coverage until they were 26 and provided subsidies through expanded Medicaid coverage (a state-run federal program to get health care to the poor.) It may not have been the progressive’s dream but it insured millions of people who had gone without health care.
The catch was the universal mandate — the requirement that everyone choose and purchase a plan on their state exchange. The rationale is that insurance companies can’t afford to provide that extended coverage if the only people who sign up for it are likely to be sick. The point of insurance is to spread the risk among the well and the sick but the populations that are most likely to be well — young, healthy people — are the least likely to buy insurance. So the universal mandate required everyone to get insured or pay a fine
The plan was passed on a complicated, narrow, party line vote. Obama signed it, but the Democrats failed to explain and promote it, while the Republicans did an excellent job of demonizing it. Promises to repeal ObamaCare boosted them in the 2010 midterms and the newly elected members voted more than 50 times to repeal it (always to be stymied by the Senate and the threat of an Obama veto.)
None the less, it survived two Supreme Court challenges (although the Court made the Medicaid expansion optional, it did uphold the universal mandate), and proved remarkably hard to kill. In part this was because while people didn’t like the repressive socialized medicine policy the Republicans conjured up in the media, they did like the components of the actual policy.
So then, a funny thing happened once Obama wasn’t president any more. With the personalities and partisan politics out of the way, the policy became part of people’s lives and they came to count on it. It got more and more popular until supporting it against Trump’s efforts to starve it of funds became part of the Democratic case for taking back the House in the 2018 midterms. In 2019 supporting the ACA had become smart politics.
But just this weekend, as Trump was celebrating what he claimed was his complete vindication by the Mueller report, a report still seen only by a handful of people, the Department of Justice, led by the same Attorney General William Barr who had declared Trump exonerated, decided to back a case in a lower court that determined that the universal mandate was unconstitutional and thus the entire plan would be repealed. Not only did the Trump administration step on his own good news day, but he gave the Democrats a point on which to pivot away from criticizing him to supporting a popular policy from attack by his administration.
Here’s what happened and what it means:
Axios by Sam Baker
In a stunning escalation, the Justice Department wants the courts to strike down the entire Affordable Care Act — not just its protections for people with pre-existing conditions
Why it matters: It raises both the real-world and political stakes in a lawsuit where both were already very high. If DOJ ultimately gets its way here, the ripple effects would be cataclysmic. The ACA’s insurance exchanges would go away. So would its Medicaid expansion. Millions would lose their coverage.
- The FDA would lose the authority to approve an entire class of drugs.
- The federal government would lose a lot of its power to test new payment models — in fact, the administration is relying on some of those ACA powers as it explores conservative changes to Medicaid.
The state of play: Politically, this makes no sense. Chuck Schumer and Nancy Pelosi must be dancing in the streets.
- Health care — specifically pre-existing conditions — was overwhelmingly a winning issue for Democrats in 2018.
- This lawsuit already had Republicans in an unpleasant bind.
- Now the administration is doubling down, putting even more people’s coverage on the chopping block.
Where it stands: Judge Reed O’Connor ruled in December that the ACA’s individual mandate has become unconstitutional, and that the whole law must fall along with it.
- At the time, the Trump administration argued that the courts should only throw out the mandate and protections for pre-existing conditions — not the whole law.
- But in a one-page filing last night, DOJ said the 5th Circuit Court of Appeals should affirm O’Connor’s entire ruling.
What they’re saying:
- “The bad faith on display here is jaw-dropping,” pro-ACA legal expert Nick Bagley writes.
- “I was among those who cheered the selection of William Barr as Attorney General and hoped his confirmation would herald the elevation of law over politics within the Justice Department. I am still hopeful, but this latest filing is not a good sign,” said Jonathan Adler, a conservative law professor who helped spearhead the last big ACA lawsuit.
Go deeper … Exclusive poll: Public fears lawsuit over pre-existing conditions
AmGov, Axios and the News 