The popularity of those provisions made repeal politically dangerous, so Republicans decided to leave the popular parts in place and try to repeal only the unpopular parts. Even that, however, proved impossible to do, and in the end they settled for a small morsel: Tucked into their tax cut bill was a provision effectively repealing the individual mandate by reducing the fine for not carrying insurance to zero.
Which set the stage for a new lawsuit from a group of conservative states seeking to strike down the entire ACA, and now the Trump administration has taken a position in that lawsuit that is utterly spectacular in its legal and political foolishness.
It’s so foolish, in fact, that it could wind up making something like single-payer health care — gasp! — a reality.
For now, I don’t want to go too deeply into the legal issues at play; this post from Nicholas Bagley explains it all. The short version is that the administration is refusing to defend the ACA in court, even though it’s standard practice for the Justice Department to defend laws even when they don’t agree with them. Jonathan Cohn summarizes the position they’re taking, particularly with regard to pre-existing conditions:
The lawsuit’s key argument is that Congress intended for the pre-existing condition protections to work in tandem with the law’s individual mandate, the provision that people have insurance or pay a penalty. Now that Congress has decided to zero out the penalty, as Republicans did last year as part of the 2017 tax cut, the pre-existing conditions have to go, too.
That would mean insurers would no longer be subject to “guaranteed issue” (a requirement that they sell policies to anybody, regardless of medical status) or “community rating” (a prohibition on charging higher premiums to people with pre-existing conditions).
Most legal scholars seem to think this suit is unlikely to succeed. But take a moment to marvel at the position the administration has taken: They think insurance companies should once again be able to deny you coverage or charge you outrageous premiums because you have a pre-existing condition.
If Democrats don’t repeat that sentence a thousand times a day between now and November, they’re nuts.
Indeed, polls have shown over and over again that the policy issue most on voters’ minds right now is health care. In Virginia’s 2017 elections, for instance, exit polls showed health care far and away the most important issue for voters, and those who said it was their top issue picked Democrat Ralph Northam over Republican Ed Gillespie in the governor’s race by a margin of 77-22 percent. A recent HuffPost/YouGov poll also found that health care is voters’ top issue. As much as president Trump may dominate the headlines, the increasing cost of care is weighing heavily on voters.
And now, the Trump administration has told the public that they want to make things much, much worse. Not only may health insurance continue getting less affordable, they even want to take away the pre-existing conditions protection you now enjoy, all while they’re working hard to destabilize the private insurance market.
So they have an absurd legal theory in this case, no policy theory of how what they’re doing will actually make things better, and no political theory about how this will help them.
What happens now? Democrats will gleefully hammer away on Republicans for doing this. Which will make it more likely that the Democrats will take back the House and/or the Senate. It will also make it more likely that they take back the White House in two years. If they do, they’ll conclude, not unreasonably, that they have a mandate to pursue sweeping health care reform. Support for universal coverage in one form or another has all but become dogma in the Democratic Party, and no presidential contender is going to propose modest, technocratic changes to the system. That day is behind us. They’ll be advocating bold, ambitious plans that would radically increase government’s role in the provision of health insurance.
If they succeed, it will be in no small part because Republicans made voters so disgusted with the existing health care system and afraid for their own health security that they’re willing to support radical change.
There’s an old Marxist idea that sometimes you need to “heighten the contradictions,” making the problems of the current system even worse so you can more quickly bring about the revolution that will replace that system with something better. If you didn’t know better, you’d think that today’s Republican Party is doing just that on the issue of health care, in the service of exactly the kind of big-government universal program they claim to despise.
Republicans seem determined not only to make American health care more inefficient and cruel in every way they can think of, but to do it while making themselves as unpopular as possible. That could both bring about the political victory of their enemies the Democrats, and create the conditions for those Democrats to pass a universal coverage program. It’s quite an extraordinary strategy.