“After careful consideration, and with the approval of the President of the United States, I have determined that, in Texas v. United States, No. 4: l 8-cv-00167-O (N.D. Tex.), the Department will not defend the constitutionality of 26 U.S.C. 5000A(a), and will argue that certain provisions of the Affordable Care Act (ACA) are inseverable from that provision.”
— Attorney General Jeff Sessions, in a letter, June 7, 2018

In plain English, the attorney general’s letter means that the Trump administration no longer supports a provision of the Affordable Care Act, a.k.a. Obamacare, that makes it possible for people to buy insurance if they have preexisting health conditions.

Sessions, in an unusual step, sided with plaintiffs who had argued the ACA was now unconstitutional because Congress, in the tax bill, eliminated the penalty for not buying insurance, known as the individual mandate. Sessions said the Justice Department would no longer defend the law in a lawsuit brought by Republican-led states, a surprise stance that led to the resignation of a senior career lawyer at the Justice Department.

But what caught the Fact Checker’s eye was Sessions’s statement that this step was being done “with the approval of the President of the United States.”

That means we can judge whether the president, whom we’ve dubbed the “king of flip-flops,” is making yet another flip-flop on an important policy issue. Let’s explore what the president has said about the preexisting conditions section in Obamacare, which public-opinion polling shows is one of the most popular features of the law.

Technically, by the way, it’s two provisions: Guaranteed issue, which means insurance companies must sell insurance to anyone who wants to buy it, and community rating, which means that people who buy similar insurance and are the same age pay similar prices. The two together made insurance affordable for people with, say, cancer, though before passage of the ACA, even minor health problems could have led an insurance company to deny coverage.

A White House spokesman did not respond to a request for an explanation of the president’s shift in position.

As a presidential candidate

Feb. 18, 2016. Anderson Cooper, during a CNN town hall, asked about Trump’s plan to repeal Obamacare: “Will people with preexisting conditions be able to get insurance?” Trump’s answer: “Yes.”

Feb. 19. In the same interview, Trump indicated that he supported the individual mandate. There was a backlash, so a day later, he tweeted he really was talking about preexisting conditions.

Feb. 25. During a GOP presidential primary debate, Trump declared: “I would absolutely get rid of Obamacare. We’re going to have something much better, but preexisting conditions, when I’m referring to that, and I was referring to that very strongly on the show with Anderson Cooper, I want to keep preexisting conditions. I think we need it. I think it’s a modern age. And I think we have to have it. … Get rid of Obamacare, we’ll come up with new plans. But, we should keep preexisting conditions.”

Oct. 9. During the second presidential debate, Trump said he would ensure that coverage for preexisting conditions was retained: “When we get rid of those lines, you will have competition, and we will be able to keep preexisting, we’ll also be able to help people that … don’t have money because we are going to have people protected. But when we get rid of those lines, you will have competition, and we will be able to keep preexisting.”

As president

Feb. 28, 2017. During an address to a joint session of Congress, Trump listed preexisting conditions as the first principle for creating a better health-care system. “First, we should ensure that Americans with preexisting conditions have access to coverage and that we have a stable transition for Americans currently enrolled in the health-care exchanges.”

April 30. Trump, in an interview with CBS’s “Face the Nation,” says he insisted that coverage for preexisting conditions needed to be in the replacement bill: “Preexisting conditions are in the bill. And I just watched another network than yours, and they were saying, preexisting is not covered.’ Preexisting conditions are in the bill. And I mandate it. I said, ‘Has to be.’ ”

May 1. Defending a House repeal-and-replace bill in an interview with Bloomberg News, Trump insists: “Yeah, we’re having preexisting conditions. That’s it. … We are protecting preexisting conditions. And it’ll be every … bit as good on preexisting conditions as Obamacare.”

July 19. In an interview with the New York Times, Trump says he has to be sure coverage for preexisting conditions is included: “Nothing changes. Nothing changes. Once you get something for preexisting conditions, etc., etc. Once you get something, it’s awfully tough to take it away. … Politically, you can’t give it away. So preexisting conditions are a tough deal.”

July 24. In a campaign-style event, Trump defends the Senate version of repeal: “The Senate bill protects coverage for preexisting conditions, and you don’t hear this from the Democrats. They like to tell you just the opposite, and they didn’t even know the bill. They run out, they say: death, death, death.”

Sept. 20. Trump tweets he would not support a bill if it did not include coverage of preexisting conditions.

(See the video above for even more examples.)

The Pinocchio Test

As far as we can tell, Trump has not commented on coverage for preexisting conditions since the efforts to repeal Obamacare flopped in late 2017. But that makes his stance even more remarkable.

With no explanation or warning, the president now supports an effort to nullify the provisions that make it possible for millions of people to purchase affordable insurance. Thus this new position, directly contradicting his repeated stance as a candidate and as president, qualifies as a flip-flop.

An Upside-Down Pinocchio


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