Affordable Care Act brief raises roof
Democrats say argument insurance law illegal is wrong course during pandemic
WASHINGTON — The Trump administration touched off another politically charged battle over the future of the Affordable Care Act with its latest maneuver to dismantle the law during a pandemic — a move that Democrats lambasted and few Republicans defended.
The case is the most serious challenge to date for the 10-year-old health care law that was President Barack Obama’s signature domestic achievement. The Supreme Court has already ruled on two legal challenges to the law, and both times it has left most of the law in place.
The court has not said when it will hear oral arguments, but they are likely to take place in the fall, just as Americans are preparing to go to the polls in November.
The 82-page brief filed late Thursday in a case brought by GOP state attorneys general undercuts President Donald Trump’s repeated pledges to ensure coverage for people with preexisting conditions as his administration and the broader Republican Party seek to wipe away that protection.
Trump vowed as recently as last weekend at a campaign rally in Tulsa that he would “always protect patients with preexisting conditions, always, always.” But his own administration’s position in court is that the 2010 Patient Protection and Affordable Care Act’s individual mandate is unconstitutional, and therefore so is the entire law — even its most popular provisions, such as coverage for those with preexisting conditions.
“Nothing the 2017 Congress did demonstrates it would have intended the rest of the ACA to continue to operate in the absence of these three integral provisions. The entire ACA thus must fall with the individual mandate,” the brief said.
The Supreme Court has agreed to consider three legal questions in the case: whether Texas and two individual plaintiffs who have joined the suit have standing; whether Congress rendered the individual mandate unconstitutional; and, if it did, whether the rest of the law must fall with it.
Republican officials and strategists working on comGov.
petitive campaigns were dismayed Friday at the administration’s decision to reignite the issue, particularly as health care is at the forefront of voters’ minds during the coronavirus pandemic.
The ties between the pandemic and access to the Affordable Care Act, commonly known as Obamacare, were underscored this week with a new report from the Centers for Medicare and Medicaid Services, which found that 487,000 Americans used a special enrollment period for the health care law after losing their coverage because of job losses.
“To take that issue to the Supreme Court, in the middle of a pandemic, shows that there’s a lack of understanding about the fear out there in this country,” said Rep. Debbie Dingell, D-Mich., a closely watched presidential battleground state. “I think that we need to talk about it so that people understand what’s going on.”
The potency of health care as an issue was evident in advance of the filing. In anticipation of Thursday’s deadline for the Justice Department to respond in the case, Democrats promoted the Affordable Care Act and criticized Republican senators for their attempts to repeal it or insufficiently defend it.
In Maine, Democrat Sara Gideon, who is running against Sen. Susan Collins, a Republican, criticized the four-term senator for casting a “key vote” that prompted the legal challenge from the Republican attorneys general. Collins has voted against repealing the health care law, but supported a separate law enacted in 2017 that effectively eliminated the Affordable Care Act’s requirement that everyone hold insurance.
Collins, in a statement Friday, said the Justice Department arrived at the “wrong conclusion” in its argument in court, saying it was never the intent of lawmakers to repeal the entire health care law when the Republican-controlled Congress got rid of its individual mandate through the 2017 tax cut bill.
“The administration’s decision to submit this new brief is the wrong policy at the worst possible time as our nation is in the midst of a pandemic,” Collins said in a statement to The Washington Post. “The Affordable Care Act remains the law of the land, and it is the Department of Justice’s duty to defend it.”
But with its legal filing, the Trump administration directly contradicted that position, arguing that even provisions regarding preexisting conditions or high-risk medical histories could not be severed from the mandate.
The administration’s aggressive argument against the Affordable Care Act comes as concerns heighten from Republicans about their overall electoral fortunes this fall because of how the president is handling the struggling economy, a national uprising over racism and the pandemic.
Democrats have largely credited their winning back the House majority in 2018 to health care, and they’ve seized on Trump and congressional Republicans’ repeated efforts to repeal it in campaigns. The GOP mantra for a decade has been “repeal and replace,” but the party has never been able to coalesce around an alternative.
BIDEN’S STANCE
Presumptive Democratic presidential nominee Joe Biden expounded the issue this week, saying during a campaign swing in Pennsylvania on Thursday that Trump’s “twin legacies” are “his failure to protect the American people from the coronavirus, and his heartless crusade to take health-care protections away from American families.”
At a virtual fundraiser Friday, Biden said, “millions have contracted coronavirus, people need a lifeline. And they don’t need a president suing to deny them health care.”
The Biden campaign Friday hosted events with surrogates designed to draw a sharp contrast with the president. Jill Biden and Sen. Kamala Harris, D-Calif., held a virtual event with supporters in Wisconsin, a battleground.
“This administration is trying to take health care away from million of Americans. That’s it,” said Harris, who is under consideration to be Biden’s running mate.
Jill Biden promoted the steps her husband would take to add to the Affordable Care Act rather than tear it down. She cited his support for an optional public insurance program, among other things.
“This matters to Joe,” she said. “And you matter to him.”
The Trump campaign, however, slammed Biden for what communications director Tim Murtaugh called the “Obamacare disaster” and hinted at the GOP’s lines of attack on health care to come this fall.
“Joe Biden has no credibility on health care ever since the Obama/Biden administration’s Obamacare disaster kicked Americans off of their preferred plans. His support for a government-run ‘public option’ for health care, which endangers 180 million Americans’ private insurance and threatens more than 1,000 rural hospitals, is an admission that Obamacare was fatally flawed,” he said.
SCHUMER, PELOSI REACT
“Americans should look at what the Trump administration and Republicans do — not what they say — on health care,” said Senate Minority Leader Charles Schumer, D-N.Y. “Republicans remain unflinching in their cruel and callous campaign to eliminate Americans’ health-care coverage, even as the country faces down the biggest global health crisis in recent history.”
House Speaker Nancy Pelosi of California and fellow Democrats hope to force Republicans to cast a tough vote on the issue next week. She introduced a bill Wednesday that would broaden the reach of the law and make it available to more Americans.
The bill would penalize states that do not expand Medicaid and expand subsidies for people who buy private health plans in the insurance marketplaces created under the law for individuals and families who do not have access to affordable healthcare benefits through a job.
Responding to the court filing late Thursday, Pelosi said Trump and Republicans’ “campaign to rip away the protections and benefits of the Affordable Care Act in the middle of the coronavirus crisis is an act of unfathomable cruelty.”
Health care has also been a dominant theme in televisions spots run this week by Democratic Senate candidates and groups working to elect Democrats, popping up as an issue in ads in Arizona, Montana, North Carolina and Colorado.
In private, Republican officials working on down-ballot races vented their frustration with the administration’s decision to revive the health care fight, while acknowledging that repealing the Affordable Care Act remains a core issue for their base. The timing of the filing, in the pandemic, was also particularly unhelpful, according to Republicans.
“In a sea of stupid decisions this administration makes on a daily basis, this one stands out,” complained one Senate GOP aide Friday, granted anonymity to candidly assess the White House’s moves.
Some in the Trump administration, including Attorney General William Barr, have privately argued that parts of the law should be preserved during the pandemic. In a meeting last month, Barr made that argument with senior officials, but days later, Trump told reporters, “We want to terminate health care under Obamacare.”
Judd Deere, a White House spokesman, said after the brief was submitted that “a global pandemic does not change what Americans know: Obamacare has been an unlawful failure and further illustrates the need to focus on patient care.”
“The American people deserve for Congress to work on a bipartisan basis with the president to provide quality, affordable care,” Deere said.
“Trying to take away health care in the middle of a pandemic is like throwing out the sandbags during a hurricane,” said Jesse Ferguson, a longtime Democratic strategist. “The pandemic has made clear for people how important it is to them that their neighbors have health care. It’s no longer a nicety that others have health care; it’s now a necessity.”
Doug Heye, a longtime Republican strategist, said the Democratic attack ads essentially write themselves.
“For me, it’s really easy to see how Democrats will be able to out-message Republicans on this,” he said. “You lay out the covid statistics, and you blame President Trump and whoever the Republican is that you’re running against.”
David Flaherty, a Colorado political consultant, said the pandemic and the White House legal filings “without question” made the issue even more helpful for Democrats.
“It’s only good for Republicans from conservative districts” who want to avert a primary from a GOP rival, Flaherty said of the White House repeal effort. “It’s only good for the base; it’s not good for middle voters. It’s nothing but upside for Democrats.”
Rep. Cheri Bustos, D-Ill., who leads House Democrats’ campaign arm, said the party considers health care the top issue in dozens of swing districts that will determine which party controls the chamber next year.
“We are literally battling the worst pandemic in 100 years, and Washington Republicans are dead set on being the biggest threat to public health,” she said.
She said the health care message would be, “Democrats are the party of health care. Republicans are the party of drinking bleach.”
Information for this article was contributed by Seung Min Kim, Karoun Demirjian, Meagan Flynn and Tim Elfrink of The Washington Post; by Alexandra Jaffe, Alan Fram and Emily Swanson of The Associated Press; and by Sheryl Gay Stolberg of The New York Times.