The Washington PostDemocracy Dies in Darkness

The Health 202: The Trump administration considered defending the ACA in court

with Paulina Firozi


The Trump administration is taking major political heat for opposing Obamacare in a high-stakes legal challenge, which a federal appeals court could rule on any day now.

But that wasn’t always the plan.

It turns out the administration originally intended to embrace all of the Affordable Care Act — including its protections for patients with preexisting conditions — until an influential trio of conservative advisers convinced President Trump earlier this year to do exactly the opposite. The reversal of course has not previously been reported and sheds new light on how the Trump administration has struggled to uphold and message its health-care plans following Congress's failure to repeal and replace Obamacare in summer 2017. It also suggests at least some Republicans close to Trump are concerned about the potential political backlash and likely chaos if the court rules to strike down the ACA.

Here's the sequence of events: Last December, a district judge upheld a challenge from nearly two dozen GOP-led states saying the ACA is unconstitutional. A three-judge panel at the U.S. Court of Appeals for the 5th Circuit is expected to weigh in next, in a ruling that is sure to reignite the ACA debate and that is likely to be appealed to the Supreme Court.

The White House has refused to defend the ACA in this case. But former administration officials say — and the White House has confirmed — that two options were on the table in March 2019, right before a deadline for the Justice Department to submit a brief to the appeals court stating its position in the case Texas v. Azar.

The administration's choices: side with Texas and other Republican-led states contending the entire ACA is unconstitutional and must be struck down, or with California and other Democratic-led states defending the ACA.

“Folks thought the current posture in court wasn’t the best posture,” a senior administration official told me. “The question was then put to the president: Do you want to side with Texas or California? It’s pretty simple to see where he’d come down on that.”

So in a legal filing on March 25, three Justice Department attorneys argued the entire ACA should be invalidated. They said the government would file a brief supporting the Texas-led coalition pursuing the law's complete nullification. 

Up until then, the administration had taken a middle-of-the-road position on the lawsuit. It only partially agreed with the Republican-led states. In a legal brief filed in June 2018, the Justice Department argued there were grounds only to strike down the law’s popular consumer protections, including those for people with preexisting conditions. But it also contended that the rest of the law should stand.

Democrats seized upon that stance, casting the administration as hypocritical for claiming to support preexisting condition protections while simultaneously refusing to defend that part of the ACA. And the attacks worked out well for them: They gained the House majority and kept Republicans on the defensive on health care through the 2018 midterm elections.

The tricky political optics led to a deep divide within the administration. Officials at the Department of Health and Human Services, including Centers for Medicare and Medicaid Services Administrator Seema Verma, wanted the Justice Department to revise its position to support the entire ACA, said former and current administration officials.

But several White House advisers wanted Trump to swing in the opposite direction and side entirely with the red states. Former and current administration officials said that perspective was pushed primarily by Russ Vought, deputy director of the Office of Management and Budget, and Joe Grogan, head of the Domestic Policy Council, at the behest of OMB Director Mick Mulvaney.

“Grogan did that at Mulvaney’s urging,” a former HHS official told my Washington Post colleague Yasmeen Abutaleb.

The former official recalled that when the news reached HHS that the decision had been made to abandon all support for the ACA, appointees there “were royally pissed.”

HHS Secretary Alex Azar and Verma — who are much more well-versed in the ACA — worried about the terrible political optics and potential consequences of opposing the law. But Vought, Grogan and Mulvaney were more concerned about appearing to be out of sync with the Republican-led states challenging it.

It all came to a head in March, on a week that Azar was on vacation, another former administration official told me. Partially because Azar wasn’t there to make his case, the Mulvaney/Grogan/Vought camp carried the day and persuaded Trump to side with them.

Let’s rewind for just a minute. This whole conundrum arose from a decision by Texas to try to unwind the ACA, after Congress tried but failed to repeal the law so reviled by conservatives. Texas filed a lawsuit in February 2018 arguing the entire law is unconstitutional because its penalty for lacking health coverage (the provision the Supreme Court used in 2012 to uphold it) is gone.

It’s the job of the federal government to defend laws passed by Congress, so it was unusual when Justice agreed to defend only part of the ACA. As a result, California Attorney General Xavier Becerra (D) stepped in.

However the appeals court rules, both sides are expected to appeal the decision to the Supreme Court, potentially setting it up for a hearing next spring or fall. 

But this all could have played out very differently.


AHH: The National Institutes of Health has committed $945 million in research grants to address addiction and chronic pain. It’s the largest such grant to one program in history by the government’s premier biomedical research center, our Post colleague Lenny Bernstein reports.

That money, from NIH’s Helping to End Addiction Long-term initiative, will be doled out to 375 grantees in 41 states to study opioid addiction treatments and other efforts including best practices for caring for infants born with drug dependencies.

“We have effective tools, such as medication-assisted treatment, but we still need better ways to treat opioid addiction and manage pain in an effective, personalized ay,” HHS Secretary Azar said in a news release.

OOF: The mysterious vaping-related lung illness sickening at least 805 people across 46 states and one U.S. territory. There have been 12 confirmed deaths in California, Florida, Georgia, Illinois, Indiana, Kansas, Minnesota, Mississippi, Missouri and Oregon.

Federal health officials have not yet linked any one e-cigarette or vaping product or any substance to the spate of illnesses, and a top Centers for Disease Control and Prevention official told lawmakers the investigation has been challenging. Along with the CDC, the Food and Drug Administration is also working with the Drug Enforcement Administration in a criminal investigation of the outbreak.

“Based on initial data from two states, officials know that most patients reported a history of using e-cigarette products containing THC, the psychoactive ingredient found in marijuana,” our Post colleague Lena H. Sun reports. “Some reported using THC and nicotine products, and some have reported using only nicotine products. But officials and clinicians have said patients, particularly younger ones, are often reluctant to share information about their use of illicit substances, such as marijuana."

OUCH: Andrea Goldstein, a lead staff member for the Women Veterans Task Force on the House Veterans' Affairs Committee, said she was assaulted last week at the VA Medical Center in Washington, the New York Times’s Jennifer Steinhauer reports.

While at the center’s cafe, Goldstein said a man “slammed her below the waist and told her that ‘you look like you could use a good time,’” she told the Times.

House Veterans Affairs Committee Chairman Rep. Mark Takano (D-Calif.) wrote a letter to Veterans Affairs Secretary Robert Wilkie, urging an arrest in Goldstein's case. 

“Ms. Goldstein said she had just come from a meeting on Capitol Hill and was carrying in her purse the draft of a bill designed to curb sexual assault and harassment when she became a victim of it,” Jennifer writes. “… The incident underscores an intractable problem for many V.A. hospitals across the nation as they scramble to provide better health care for the rising number of women in the system.”

A spokeswoman for Veterans Affairs Department said: "These are serious allegations, and V.A. is treating them as such." 


— U S. District Judge Dan Aaron Polster, set to oversee the landmark opioid trial in Ohio next month, said he will not step aside, Lenny reports.

Polster responded to the claim from drug manufacturers at the center of the case that his comments in court, such as calling on both parties to settle so that any money could go to affected communities, were biased. In a written ruling, he said “publicly acknowledging” the toll of the nation’s opioid crisis “does not suggest I am biased; it shows that I am human.”

“Acknowledging the immense scope of the opioid crisis, and calling on all entities who have the power to ameliorate it to join me in doing so without delay, does not reflect any bias or prejudice toward any party to the litigation; and no reasonable observer would so conclude,” Polster added.


— California’s law to address surprise medical bills is the center of focus in Washington, where lawmakers are trying to address the issue at a national level. The law, which sets a payment rate for out-of-network doctors based on what other doctors receive, is similar to one approach being considered in Congress.

“The parties who have watched California’s performance disagree, sometimes vehemently, on whether the prospect is rosy or grim,” the New York Times’s Margot Sanger Katz and Sarah Kliff report. “Doctor groups, particularly those representing specialties like anesthesia and emergency medicine, argue that a national version of a law like California’s would disrupt medical care so much that patients would have difficulty finding a doctor.”

A system like the one being used in California, often called benchmarking, is similar to the bills that have advanced out of the Senate Health, Education, Labor and Pensions Committee and the House Energy and Commerce Committee.

Margot and Sarah add that new data “from California state regulators and other sources suggest that the situation isn’t as dire as the doctors’ groups describe. Since the California law took effect in 2017, there has been little evidence that patients’ access to health care has suffered. In other words: Some doctors may be hurting from a pay cut, but that doesn’t seem to be hurting patients.”


— Patrick Conway has resigned as chief executive of Blue Cross Blue Shield of North Carolina after an impaired-driving arrest. Conway, who headed the Center for Medicare and Medicaid Innovation at HHS under President Barack Obama, resigned immediately when asked by the board of trustees, according to a statement from Blue Cross Blue Shield of North Carolina. Chief Operating Officer Gerald Petkau will serve as interim CEO.

— And here are a few more good reads: 


Federal watchdog: NIH must better protect research from foreign influence (Stat)

Tom Price angling for Georgia Senate appointment (Politico )


Senate passes stopgap spending bill to keep government open through Nov. 21, sending measure to Trump (Erica Werner)

House panel asks e-cigarette companies to cease all advertising (The Hill )

House passes bill to revamp medical screenings for migrants at border (The Hill )


Flu season threatens to complicate diagnoses of vaping-related illness (Stat )

Medical marijuana regulators stall industry expansion amid complaints of unfairness (Erin Cox)

Insurers Test New Way To Cut Maternity Care Costs: Bundling (Kaiser Health News )


Coming Up

  • The American Enterprise Institute holds an event on the "The winners and losers of Medicare for All, Obamacare, and other health care proposals" on Oct. 9 


Here's where the 2020 candidates stand on impeachment: 

The 2020 presidential candidates have been more vocal on the issue of an impeachment inquiry into President Trump. (Video: The Washington Post)