If a federal appeals court invalidates the Affordable Care Act in the coming weeks, the Trump administration, which has consistently tried to overturn the law, might be expected to celebrate. But instead, current and former administration officials say, the White House — with no viable plans for replacing critical health benefits for millions of Americans — intends to ask the court to put its ruling on hold. And the administration may try to delay a Supreme Court hearing on the highly charged matter until after the 2020 election.
Senior administration officials say they have some ideas for replacing parts of the 2010 health-care law, “principles” crafted in part by Centers for Medicare and Medicaid administrator Seema Verma. However, replacing key benefits — such as guaranteed coverage for people with preexisting conditions — would require the cooperation of Democratic congressional leaders, who have vowed to defend the law and have no interest in a piecemeal replacement plan likely to fall far short of preserving health coverage for about 20 million Americans.
The administration’s plan to seek a stay of any court ruling that undermines the law reflects the political disadvantages of its decision to side with GOP-led states seeking to topple the ACA, also known as Obamacare. Even as the Justice Department urges the courts to invalidate the entire ACA, administration officials are promising voters that there will be no immediate impact on their coverage.
“There will be a stay — it’s not like the decision is going to come down and the world is going to change,” said a senior administration official, who like others spoke on the condition of anonymity to discuss White House strategy.
The administration also hopes to slow the case’s progress to the Supreme Court, to avoid having its efforts to invalidate the law spotlighted during President Trump’s reelection bid, two former administration officials said.
Trump’s Justice Department, which declined to comment on the case, is siding with 18 Republican state attorneys general in arguing that the entirety of the Affordable Care Act is unconstitutional. A trial court judge in Texas ruled last year that the entire law is invalid, and a three-judge panel of the U.S. Court of Appeals for the 5th Circuit is expected to issue an opinion on the case any day.
If the panel upholds the ACA, the administration could ask the lower court that struck down the law to reconsider the case or it could request a full 5th Circuit hearing — instead of immediately appealing to the Supreme Court.
The appeals court could uphold the entire law, or strike it down. Or, the judges could take a middle path, striking only its mandate to buy health coverage, or both the law’s mandate and its requirements for insurers to cover people with preexisting conditions without charging them more. Regardless, legal experts say, the law is likely to end up back in front of Supreme Court for a third time.
Conservative allies of the administration also seem to prefer a later time frame — where the Supreme Court would hear oral arguments in fall 2020 and would not issue its decision until after the election.
Tommy Binion, vice president of government relations for the Heritage Foundation, said if the possibility of a SCOTUS decision looms over the election, he thinks Republican messaging about Obamacare “would be buoyed.”
“The Democrats are offering Medicare-for-all as their vision for health care,” Binion said. “If it looks like the Supreme Court could strike down the ACA, then Republicans will be offering their vision for health care in this country.”
In contrast, Democrats are eager for a Supreme Court hearing in the middle of the 2020 campaign. The lawsuit threatened ACA-mandated protections for people with preexisting conditions, and Democrats campaigned on that risk to help them win the House majority last year. They are likely to keep it a top election topic if the appeals court rules against the ACA.
California Attorney General Xavier Becerra, who is leading the defense of the ACA, could petition the Supreme Court to hear the case next spring, if the appeals court moves to strike the law. If the court agreed, a decision could come in June, five months before the election.
“No one should live in fear of being denied the lifesaving care they are entitled to, including the 133 million Americans with preexisting conditions,” Becerra said in a statement provided to The Washington Post. “We’re prepared to fight as long and hard as necessary to save the Affordable Care Act.”
Senior administration officials say their replacement “plan” is a statement of principles they plan to send to Congress, which includes passing legislation that would protect those with preexisting conditions, encourage the creation of health savings accounts and reduce the types of medical care that health insurers would have to cover.
But the administration does not have a plan for a bipartisan bill that would cover as many people as the ACA and could pass Congress. The administration has not communicated extensively with most Republicans on Capitol Hill, and Democrats said they are unwilling to vote on bills from Republicans to reinstate the protections for patients with preexisting conditions.
Current and former administration officials said that if the court rules against the ACA, the White House plans to emphasize its commitment to protecting those with preexisting conditions but did not specify how it would go about doing so, whether through an executive order or encouraging Congress to take up legislation. Senate Republicans have introduced bills that they say would protect people with preexisting conditions, but Democrats have criticized those efforts as inadequate.
A senior administration official said the White House would also stress that “nothing is going to change overnight” to stem expected panic that millions of Americans could lose their health insurance if the court invalidates all or part of the law.
Democrats control the House of Representatives, and they have said they will not consider legislation that does not strengthen Obamacare. Even when Republicans controlled both chambers of Congress and the White House in 2017, they repeatedly failed to deliver on an eight-year promise to repeal and replace the law. Most congressional Republicans are unwilling to revisit the health-care fight, which they fear will cost them more seats. Several Republican aides said their offices had not spoken with the administration about a contingency plan if the Affordable Care Act is struck down.
“Folks break out in hives when that discussion comes up,” an industry lobbyist said.
The administration also does not want to put out a detailed plan for Democrats to pick apart just as the campaign heats up. Efforts to repeal the law in 2017 were highly unpopular, and government estimates showed that millions would lose their health insurance under Republican proposals.
“It’s difficult to come up with a solution everyone agrees with and is free market enough,” said Chris Meekins, an analyst with financial services firm Raymond James and a former Health and Human Services official in the Trump administration. “You know whatever you put forward is going to get slashed, so why put a plan that people can shoot arrows at out there?”