Since the latest open enrollment period for the ACA ended on December 15, I thought that now would be a good time to review all of the administrative attacks that the Trump administration had made on this much maligned law. It amazes me that a law that has given so much to so many has been the subject of such vitriol and resistance. I have assumed for years that the law has been the surrogate victim for the poorly veiled hatred that so many Republicans had for Barack Obama. Mitch Mcconnell had openly pledged to make him a one term president, but failing that he seems to have joined President Trump in trying to reverse or erase all of his accomplishments. The law has stood “bloodied but unbowed” despite failed Republican attempts to either repeal it or replace it with sham legislation that would deny access to quality care to tens of millions of Americans,
The attacks on the ACA during this recent signup period have been pretty straightforward and laced with the usual animosity toward disadvantaged populations that characterizes so many of our president’s administrative decisions. We can always count on this administration to use “procedural barriers” to block attempts at distributive justice. Trump had the ability to cut the sign up period in half. So he did. The budget to advertise the small sign up window was virtually eliminated. The budget for “navigators” available to help people inquiring about their options was reduced substantially. New signups are expected to be down more than ten percent. Fortunately people who had been previously enrolled had their insurance renewed automatically. Perhaps some people would have modified their previous choice if they had been effectively reminded of the open enrolment period or could have found a “navigator” to explain any new options that were available to them.
It is naive to think that the recent efforts to use administrative changes to reduce new enrollment constitutes the most significant Trump attack. Timothy Jost, a health law professor, wrote an excellent review last August discussing all that Trump’s administration has done to try to undermine the ACA. Jost reminds us that the minority that elected President Trump was expecting him to repeal the ACA. The president considers destroying the ACA to be a campaign promise, and just as he has continued his efforts to “build the wall,” take the country out of NAFTA, aggressively attack China for its trade practices, and withdraw us from the Paris Climate Accords, he has been consistent and true to his promise to do everything within his power to cause the ACA “to explode.” Jost reminds us that lawsuits have been “filed claiming that President Trump is violating his constitutional duty to ‘take care that the laws be faithfully executed.’ ”
Jost lists all of the attacks that you may remember like the use of the new tax law to repeal the mandate. He also gives us an excellent link to “Sabotage Watch: Tracking Efforts to Undermine the ACA” an exercise of the bipartisan Center on Budget and Policy Priorities. “Sabotage Watch” has a frequently updated log of all of the Trump attempts to sabotage the ACA going back to the first day of the Trump administration in January 2017. The site is a little like the Washington Post’s effort to capture all of the president’s falsehoods. As of November 2, 2018 the list of the president’s falsehoods was up to 6,429 in 649 days. His ability to present fiction as fact is his only true claim to superiority in any category.
Near the end of his review of the Trump “strategy” to undermine the ACA Jost asks an important question, “Where is the Trump administration heading?” Then he answers his own question.
It is nevertheless apparent that the Trump administration is chafing under its ongoing responsibility for enforcing and administering the ACA. The Department of Justice has taken the position in litigation brought by Texas and other Republican-led states that the ACA’s individual mandate is unconstitutional and that its guaranteed issue and community rating requirements, as well as its ban on preexisting condition exclusions, should be invalidated. The administration apparently continues to enforce these provisions while awaiting the outcome of that litigation.
The decision of Federal District Judge Reed O’Connor in Texas, issued late last Friday after the end of the regular business day, was a bombshell. We have known that this problem was coming for some time as I have mentioned in other posts this fall. Now that it is here the judge’s opinion is the latest and most significant barrier for the ACA. The problem has moved from the potential concern that Jost flagged last August to a certain issue that will require resolution one way or another. This ruling is a clear manifestation of the deep divide that still exists, and the persistent intent of a minority to deny a majority of Americans the healthcare security that they deserve.
The Texas Attorney General Ken Paxton, who filed the lawsuit that claimed that the ACA was unconstitutional now that the mandate is gone, is a card carrying member of the Tea Party coalition within the Republican Party. His suit was joined by the AGs of eighteen other “red” states and Governor Paul LePage of Maine who has resisted implementation of the ACA in Maine. This determined band of warriors for the preservation of the past knew where to go to get what they wanted. Judge O’Connor is a conservative judge with a reputation for being sympathetic to efforts to undermine or toss out Democratic policies. The president was quick to signal his delight with the ruling by filing a “tweet” at 9:07 PM Friday evening.
As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!
Seven minutes later he followed up with a somewhat redundant:
Wow, but not surprisingly, ObamaCare was just ruled UNCONSTITUTIONAL by a highly respected judge in Texas. Great news for America!
I think that any federal district judge deserves respect, but Judge O’Connor’s past decisions have suggested that the respect for his legal opinions is not shared by everyone on the bench or in the country. What has followed in the press and on TV talk shows since last Friday has dwarfed all of the discussion and analysis that I was preparing to present about how the Trump administration has been trying to kill the ACA with a thousand little cuts.
Much of the information above comes from an excellent article by Amy Goldstein of the Washington Post entitled “Texas Judge Strikes Down Obamacare: Affordable Care Act Is Deemed Unconstitutional” written a few hours after the decision was released last Friday evening. Some of the articles that have flooded the papers since the ruling point out that so far the judge has not finished his work. It is still possible that he could follow up his ruling with an injunction that might immediately suspend all of the hundreds of things that make up the ACA. If he did that it could be the equivalent of having our medical house burn down. Medicare and Medicaid would be immediate zones of confusion. Some of the hospitals on the brink of financial collapse could be pushed over the edge by the uncertainty of when and if they would ever be paid for the work they are doing for publicly funded patients. The list of potential disasters flows from there and includes immediate loss of the protection for those with preexisting conditions. The Commonwealth Fund reports that 61% of Americans have a “pre existing condition.” That’s more than 150 million people. As we are cataloging the extent of the impact of Judge O’Connor’s judicial imprudence we should not forget all the young people under 26 who are enjoying the benefit of being on their parent’s coverage. They would immediately be without coverage. We have gone so far in the retooling of coverage that if the Supreme Court were to decide that the ACA is unconstitutional the negative effect would be staggering blow for everyone. The specter of the possible disaster was not something Wall Street ignored as healthcare stocks fell as much as 8.9% (Molina Healthcare) and many had losses from 2 -5%.
The pundits were quick to assure us that things were all set for 2019. They pointed out that there were several reasons why we might expect that when Judge O’Conner’s decision is appealed to the Fifth Circuit, his decision could be reversed. The best analysis of what was wrong with O’Connor’s decision that I read was a piece published by two law professors in the New York Times on Saturday. The authors, Jonathan H. Adler, a professor of law at the Case Western Reserve University School of Law and Abbe R. Gluck, a professor of law and the faculty director of the Solomon Center for Health Law and Policy at Yale Law School, report that they have filed an amicus brief together in this case even though they had been on opposite sides of the question when the ACA previously come before the Supreme Court. They agree that Judge O’Connor has many errors in his analysis. They predict that the same five justices that upheld the ACA in 2012, Roberts, Ginsberg, Sotomayor, Breyer, and Kagan will uphold it again. There is also some speculation by the authors of the NYT article that our newest justice, Justice Brett Kavanaugh, might join that decision because he has previously ruled that having one part of a law ruled unconstitutional does not make the whole law invalid. They even speculate that Justice Thomas might feel compelled to rule against Judge O’Connor’s opinion to be consistent with some of his previous decisions. Of note is the fact that when Congress threw out the mandate, they did not intend to cancel the rest of the law even though the vast majority of Republicans wished they could.
Their last paragraph makes me a little sad, somewhat apprehensive, and surprisingly paranoid. They contend that the ACA is not the only thing under attack. My paranoia is aggravated by their concern for “the rule of law.”
Friday was another sad day for the rule of law — the deployment of judicial opinions employing questionable legal arguments to support a political agenda. This is not how judges are supposed to act. Reasonable people may disagree on whether the health law represented the best way to reform America’s health care system, and reasonable people may disagree on whether it should be replaced with a different approach. Yet reasonable people should understand such choices are left to Congress, not to the courts.
Breaking with norms, but consistent with our new politics, the Trump administration is not going to follow the usual practice of defending the ACA against the lawsuit from the Texas AG or Judge O’Connor’s decision to make him the winner of round one. It seems that Trump will leave that job to House Democrats. I was traumatized by the 2016 election. Things that do not seem possible at one moment can be a reality in the next moment. We were reassured that Trump’s election was not possible, but it happened. Now we are reassured that Judge O’Connor’s errors will be resolved. I hope so, but “once burned twice wary.” The final play of the recent Patriots game with Miami has left me open to any absurd possibility. As democracies are attacked and undermined anything can happen. Judge O’Connor’s decision deserves our concern because it could possibly threaten the ACA. The fact that it ever occurred should also be a concern because it is an indicator that the minority that wants to deny access to healthcare for many Americans has not given up its goal. I hope that in 2020 we will not see crowds protesting in front of the Supreme Court as is shown the header for this post. It would be great for this latest attack on the ACA to end in the Fifth Circuit.
