After last night’s announcement that the Trump Justice Department would throw its full weight behind overthrowing the Affordable Care Act in the Texas lawsuit, media outlets and legal scholars explained the dire consequences a full repeal would have on tens of millions of Americans. Not only would costs go up for millions of Americans, but people would get worse care because insurance companies would be able to deny coverage to people with pre-existing conditions and not cover key benefits like maternity care or prescription drugs.
Media Reports:
The New York Times: “The New Position Is Also Certain To Reignite A Political Furor Over The Affordable Care Act, Ensuring That it Will Figure Even More Prominently In The 2020 Elections.” “The Trump administration broadened its attack on the Affordable Care Act on Monday, telling a federal appeals court that it now believed the entire law should be invalidated. The administration had previously said that the law’s protections for people with pre-existing conditions should be struck down, but that the rest of the law, including the expansion of Medicaid, should survive. If the appeals court accepts the Trump administration’s new arguments, millions of people could lose health insurance, including those who gained coverage through the expansion of Medicaid and those who have private coverage subsidized by the federal government.” [The New York Times, 3/25/19]
Washington Examiner: Trump Hands Democrats Their 2020 Attack Strategy. “Democrats credit campaigning on healthcare as key to propeling them to victory in the House during the midterm elections, and the latest action by President Trump’s Department of Justice asking a federal appeals court to invalidate all of Obamacare gives them ammunition heading into 2020…Democrats have tailored their messaging to say they are united on achieving the goal of universal healthcare, and cast Republicans as determined to take coverage away from people.” [Washington Examiner, 3/26/19]
Bloomberg: Trump Asks Courts To Erase Obamacare In Risky 2020 Election Move. “The Trump administration is hardening its legal position toward Obamacare, arguing now the entire law is unconstitutional in a shift that promises to bring the issue to the forefront of the 2020 election campaign. The position is a change for the Justice Department after it argued last year that large parts of the 2010 law — but not all of it — should be struck in the case Texas v. U.S., which is pending before the Fifth Circuit Court of Appeals.” [Bloomberg, 3/26/19]
Intelligencer: “It’s A Bit Odd That The DOJ Would Act To Repeal A Popular Law On An Issue That Democrats Ran And Won On In The Midterms.” “Coming off the heels of a clear political victory, it’s a bit odd that the DOJ would act to repeal a popular law on an issue that Democrats ran and won on in the midterms. Democrats have a clear advantage on health care, and the party’s 2020 frontrunners only intend to expand on coverage options. To remind voters that the GOP still wants to strip away provisions that expand care to millions of Americans seems like an unforced error on the issue voters care about most.” [Intelligencer, 3/26/19]
Vox: “The Trump Administration’s Clear, Consistent And Unequivocal Position Is That Millions Of People Should Lose Their Health Insurance And That People Should Not Be Protected From Discrimination Based On Their Medical History.” “The Justice Department said in a brief filed on Monday that the administration supports a recent district court decision that invalidated all of Obamacare. So it is now the official position of President Trump’s administration that all of the ACA — the private insurance markets that cover 15 million Americans, the Medicaid expansion that covers another 15 million, and the protections for people with preexisting conditions and other regulations — should be nullified. When combined with Trump’s endorsement of the various Republican legislative plans to repeal and replace Obamacare and other regulatory actions pursued by his subordinates, the Trump administration’s clear, consistent and unequivocal position is that millions of people should lose their health insurance and that people should not be protected from discrimination based on their medical history.” [Vox, 3/25/19]
CNN: “This Shift In The Justice Department’s Stance Doubles Down On Stripping Away All The Protections That Were A Hallmark Of The Landmark Health Reform Law.” “Trump and the administration repeatedly promised — particularly leading up to the midterm election — to protect people with less-than-perfect medical histories. But this shift in the Justice Department’s stance doubles down on stripping away all the protections that were a hallmark of the landmark health reform law. The administration’s move didn’t only startle supporters of the law. One former official who worked under Sessions told CNN Monday night that he, too, was surprised by the new position.” [CNN, 3/26/19]
Inside Health Policy: Urban Institute: Uninsured Rate Would Spike 65 Percent If ACA Undone. “Eliminating the Affordable Care Act would cause the uninsured rate to increase by at least 65 percent and cause the amount of uncompensated care to grow by at least 82 percent, according to a new study by the Urban Institute. Annual spending by the federal government on health care for the nonelderly would fall by $134.7 billion under a full repeal of the ACA, while aggregate state spending on health care would fall by $9.6 billion, according to the study.” [Inside Health Policy, 3/26/19]
Axios: “If DOJ Ultimately Gets Its Way Here, The Ripple Effects Would Be Cataclysmic.” “The Justice Department now wants the courts to strike down the entire Affordable Care Act — not just its protections for people with pre-existing conditions. This is a stunning escalation, raising both the real-world and political stakes in a lawsuit where both the real-world and political stakes 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.” [Axios, 3/26/19]
Politico: “The Consequences Could Be Substantial For Patients, Health Care Organizations And Other Groups That Have Adapted To The Nine-Year-Old Law.” “Regardless of the outcome, legal experts anticipate that the 5th Circuit’s ruling will be appealed to the Supreme Court. If the courts ultimately strike down Obamacare — over the objections of a group of Democrat-led states, which have spent more than a year defending the health law in court — the consequences could be substantial for patients, health care organizations and other groups that have adapted to the nine-year-old law. More than 20 million Americans are covered through the ACA’s Medicaid expansion and its insurance exchanges. The sweeping law — the object of repeated legal challenges since its 2010 passage — has transformed the nation’s health system, creating new patient protections and reshaping payments for doctors and hospitals.” [Politico, 3/25/19]
Experts:
Larry Levitt, Senior Vice President Of Kaiser Family Foundation: “This Sets Up A Clear Contrast For The 2020 General Election On Health Care.” “The Trump administration is now arguing in court that the whole ACA should be thrown out, including pre-existing condition protections. The president’s budget also proposes repeal and replace of the ACA. This sets up a clear contrast for the 2020 general election on health care.” [Larry Levitt Twitter, 3/25/19]
Jonathan Adler, Conservative Law Scholar: “The Justice Department’s Change In Position Is Astounding.” “According to a letter filed today with the U.S. Court of Appeals for the Fifth Circuit, DOJ now believes that the district court’s judgment should be upheld. In other words, the Department of Justice has decided not to defend any portion of the ACA. The Justice Department’s change in position is astounding. It was remarkable enough that DOJ failed to question the states’ standing to challenge an unenforced and unenforceable mandate, and even more remarkable that the Department failed to defend a readily defensible federal law. It is more remarkable still that the DOJ is abandoning its position — and the position on severability advanced by the Obama Administration — in favor of a highly strained and implausible approach to severability with little grounding or precedent.” [Reason, 3/25/19]
Philip Klein, Prominent Critic Of ACA: “Whatever One’s Policy Views, The Legal Argument Is A Mess From Start To Finish.” “As somebody who has been a critic of Obamacare since it’s early days as a campaign proposal, I’d obviously love for the law to be entirely repealed. But what the Trump administration Department of Justice has just done is to latch onto a bizarre legal theory in an effort to get rid of the law without having to go through Congress…Whatever one’s policy views, the legal argument is a mess from start to finish…As much as I’d like to see Obamacare disappear so that it can be replaced with a free market health care system, in the long-run, it’s more important to me as a conservative that courts are not used as a legislative body for people to obtain the policy outcomes that they want but can’t pass through Congress.” [Washington Examiner, 3/26/19]
Timothy Jost, Professor Of Law At Washington And Lee University School Of Law: Filing Reflects “A Strictly Political Decision, Not A Legal Decision.” “Timothy S. Jost, an emeritus professor at the Washington and Lee University School of Law, called the Justice Department’s new position ‘crazy’ and ‘legally untenable.’ ‘I can’t believe that even the 5th Circuit would take that position,’ he said in an interview, suggesting that arguably the nation’s most conservative appeals court would still be reluctant to accept the reasoning backed by the administration. ‘It would be like invalidating the Interstate Highway System, causing chaos on an unimaginable scale. It’s conceivable that the entire Medicare payment system would collapse.’ The filing reflected ‘a strictly political decision, not a legal decision,’ Jost said. ‘Trump has wanted to get rid of the ACA, and I guess he sees an opportunity here. He thinks maybe he can get the 5th Circuit to go along and, ultimately, maybe the Supreme Court.'” [Washington Post, 3/26/19]
Abbe Gluck, Professor Of Law At Yale: DOJ Decision Is “Total Bombshell, Which Could Have Dire Consequences For Millions Of People.” “‘The Justice Department is no longer asking for partial invalidation of the Affordable Care Act, but says the whole law should be struck down,’ Abbe R. Gluck, a law professor at Yale who has closely followed the litigation, said on Monday. ‘Not just some of the insurance provisions, but all of it, including the Medicaid expansion and hundreds of other reforms. That’s a total bombshell, which could have dire consequences for millions of people.’” [The New York Times, 3/25/19]
Nicholas Bagley, Professor Of Law At University Of Michigan On DOJ’s New Position: “The Sheer Irresponsibility…It’s Breathtaking.” “‘The sheer irresponsibility of the notion that you would rip the Affordable Care Act out of the American health-care system without having any prospect for a transition plan, or much less a replacement, is extraordinary,’ Bagley said. ‘It’s breathtaking.’” [Washington Post, 3/26/19]