The administration plans to seek a stay if the U.S. Court of Appeals for the 5th Circuit invalidates all or part of the Affordable Care Act in the coming weeks — and may even try to delay a potential Supreme Court hearing on the matter until after the November 2020 election, as I reported over the weekend with my colleague Yasmeen Abutaleb.
Here’s why: Eliminating health coverage for around 20 million Americans who receive it through Obamacare isn’t exactly a winning political prospect — and many in the administration know that. As I reported last month, it was only at the last minute and against the advice of some top officials that President Trump decided to side entirely with the GOP states trying to topple the law, instead of opposing them.
“There will be a stay — it’s not like the decision is going to come down and the world is going to change,” a senior administration official told me.
The administration also hopes to slow the case’s progress to the Supreme Court, two former administration officials said, speaking on the condition of anonymity to discuss White House strategy. Tommy Binion, vice president of government relations for the Heritage Foundation, told me if the possibility of a Supreme Court 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.”
Here’s why the administration isn’t eager for a quick Supreme Court hearing: If the justices heard the case as early as next spring, they could potentially hand down a ruling to invalidate all or parts of the ACA smack dab in the middle of Trump’s effort to get reelected. The administration could try to avoid such a scenario by first asking the appeals court for a hearing by the full panel, instead of appealing immediately to the Supreme Court.
Let’s back up a minute. Trump’s Justice Department is siding with 18 Republican states that are arguing all of the ACA is unconstitutional without its penalty for lacking coverage — the basis the Supreme Court used to uphold the law back in 2012.
Last year, a federal district judge in Texas ruled the entire law is unconstitutional, including its protections for people with preexisting conditions and its expansion of coverage through federally subsidized marketplaces and Medicaid expansion. A three-judge panel for the 5th Circuit is expected to issue an opinion on the case any day — although there’s no deadline for it to act, and a ruling could hypothetically be delayed until next year.
As if this case weren’t already complicated enough, there are a number of decisions the appeals court could arrive at. (Check out this Health 202 for a look at the three judges on the panel.) Here are four ways the court could rule:
1. The whole law is unconstitutional.
The three judges could agree with federal district judge Reed O’Connor that the whole law must fall because Congress zeroed out its financial penalty for lacking health coverage as part of its 2017 tax overhaul.
Supreme Court Chief Justice John G. Roberts Jr. seized upon this penalty as a reason to uphold the ACA in 2012, when he declared it a tax under Congress’s broad powers to impose levies. Now that the penalty is gone, the basis of the ACA’s constitutionality is also gone, so the GOP states are arguing.
To reach this conclusion, the appeals court would have to rule the rest of the ACA is not “severable” (to use a legal term) from the mandate and the preexisting condition protections.
2. The mandate, plus the protections for patients with preexisting conditions, are unconstitutional, but the rest of the ACA can stay.
This is the original position the Trump administration took. It’s long been argued (by the Obama administration and others) that preexisting condition protections must be paired with the mandate. The idea is that requiring insurers to cover patients with expensive medical conditions only works if all consumers — including the healthy ones — are required to buy coverage.
But now there’s essentially no mandate to buy coverage, so it could follow that insurers should no longer be required to cover people with preexisting conditions.
The panel could adopt this reasoning, while allowing the rest of the law to remain in effect by ruling it’s severable from the mandate and the preexisting condition protections.
3. Only the mandate is unconstitutional, but the rest of the ACA can stay.
If the appeals court ruled this way, it would be a big sigh of relief for Democrats and ACA advocates. Getting rid of the mandate would have little practical effect on the availability of health insurance. The mandate already lacks teeth, since Congress took the penalty away.
4. The lower district court should consider the case again.
The appeals court could also kick the case back down to O’Connor, who issued the initial ruling striking the whole law. But O’Connor’s ruling was only a partial judgment, so he could feasibly revisit the case with the intention of issuing a broader ruling on the case’s merits.
This outcome would be disappointing to the Democrat-led states defending the law, as it would dramatically lengthen the timeline for the lawsuit to be resolved — and put it back in the hands of a judge who has already shown a willingness to strike down the whole ACA.
AHH, OOF and OUCH
AHH: Friends and supporters of Sen. Bernie Sanders (I-Vt.) want the presidential contender to slow down after his heart attack and suggest he should speak openly about the experience when he does return to campaigning, our Post colleagues Sean Sullivan and Chelsea Janes report.
“The comments reflect what supporters describe as a deeply personal decision with big implications for Sanders’s candidacy: how the 78-year-old democratic socialist, viewed by many of his backers as the leader of a movement, should proceed following a health scare that has sidelined him for days and raised questions about whether he can — or should — maintain the punishing demands of a presidential campaign,” they write.
Sanders spent Monday recovering at his home in Burlington, Vt. The campaign did not initially disclose that Sanders had a heart attack, saying at first that Sanders had two stents inserted in an artery after chest pains.
Rep. Ro Khanna (D-Calif.), a national co-chair of the campaign, told our colleagues he texted Sanders’s wife last week to suggested this could be “Sanders’s ‘FDR moment,’ referring to President Franklin D. Roosevelt, whose battle with polio is sometimes said to have contributed to his empathy for the less fortunate.”
There was uncertainty following Sanders's hospitalization about the future of the campaign, but recent days he has appeared determined to move forward. The campaign introduced a new policy on curbing money in politics, and separately has used the experience to push further for Medicare-for-all.
OOF: Several bodies have been exhumed as federal investigators look into 11 suspicious deaths at a VA hospital in West Virginia. In the same ward at Louis A. Johnson VA Medical Center, multiple veterans died under similar circumstances: suspicious injections of insulin.
“The 14-month inquiry is the latest criminal investigation to engulf the Department of Veterans Affairs, intensifying questions about whether the country’s largest health-care system is doing enough to protect the veterans in its care,” our Post colleague Lisa Rein reports. "The cascade of inquiries threatens to undermine trust in the long-troubled agency and undercut President Trump’s promises to reform the far-flung system, the foundation of his pitch to veterans as he runs for reelection.”
Authorities have a person of interest in the investigation of the deaths that occurred in late 2017 through 2018. “Elderly patients in private rooms were injected in their abdomen and limbs with insulin the hospital had not ordered — some with multiple shots," Lisa writes. "The insulin, which was quickly absorbed, was given late at night when the hospital staff had emptied out. Within hours, the veterans’ blood-sugar levels plummeted. Despite these common denominators, the medical staff and those with oversight of hospital procedures were slow to identify a pattern — a failure that could have cost lives."
OUCH: The White House announced late last week it would deny immigrants visas if they don’t have their own health insurance or can prove they are able to afford coverage once they enter the United States.
Individuals applying for visas have to prove that they will be covered by “approved health insurance” within 30 days of entering the country — such as employment-based insurance or a family policy — or prove they can pay to cover “reasonably foreseeable medical costs,” our Post colleague Maria Sacchetti reports.
“Immigrants who enter this country should not further saddle our health care system, and subsequently American taxpayers, with higher costs,” the president said in the proclamation. He said the order is meant to “protect the availability of health care benefits for Americans.”
“Analysts said the proclamation appears to target family-based migration, the type of ‘chain migration’ that the Trump administration and White House aide Stephen Miller, an immigration hawk, have been unable to persuade Congress to reduce,” Maria writes. “The White House has pushed for policies that would favor wealthier immigrants with special skills over immigrants from poorer countries, including in Latin America.”
In a series of tweets, the nonpartisan Migration Policy Institute said the proclamation could exclude two-thirds of future immigrants:
HEALTH ON THE HILL
— Pete Buttigieg, Democratic presidential contender and South Bend, Ind., mayor, released a plan to bring down prescription drug costs, his latest in a set of health-care proposals.
The plan, which is similar to ones advanced by other Democratic presidential candidates and legislation from House Speaker Nancy Pelosi (D-Calif.), would empower the federal government to negotiate drug prices with companies based on a set of criteria, including “the benefit offered by the drug, the cost of bringing the medicine to the market, the costs of treating the disease the drug addresses, and international prices charged for similar drugs,” Politico’s Sarah Karlin-Smith reports. “Pharmaceutical companies that refuse to negotiate or don’t reach an agreement with the government will pay a 65 percent tax on the company’s gross sales of the drug. The tax will increase by 10 percent each quarter the company is out of compliance, until it reaches 95 percent.”
To pay for the plan, a fee on branded prescription drug companies would be upped about $5 billion a year to at least $8 billion a year, indexed to inflation. And pharmaceutical companies would be penalized if they raise their prices faster than inflation.
— More Republican lawmakers nationwide are making mental health part of their platforms.
Republican state lawmakers have proposed 5,372 bills that address “mental health” so far in 2019, which is twice the number from five years ago, according to a Post analysis using Quorum, a database of state and federal legislation, our Post colleague Tim Craig reports.
“The renewed GOP focus comes as the party, which lost more than 300 state legislative seats last year, has struggled to convince voters it cares about a host of societal challenges, including mass shootings, opioid and methamphetamine abuse, homelessness and surging suicide rates,” he writes.
— Doctors are now more likely to be Democrats, after long being known to be mostly members of the Republican Party, the Wall Street Journal’s Janet Adamy and Paul Overberg report.
Last year, two-thirds of political campaign contributions from physicians went to Democrats, and one-third went to Republicans, compared with 1990, when 61 percent of such contributions from physicians went to Republicans and 38 percent to Democrats, according to a WSJ analysis of Center for Responsive Politics data.
In part because a larger number of women are now doctors — who are more likely to be Democrats — and because there are fewer business-owning physicians, the group has had a shift to the left.
“This phenomenon is changing where physicians choose to live and work, how they treat patients and how they influence the 2020 presidential race. It’s part of a larger turn among white-collar Americans toward the Democratic Party,” Janet and Paul write. “Doctors are clustering in big cities where other Democrats reside, exacerbating a shortage of physicians in rural areas. They are urging lawmakers to restrict firearm access and expand reproductive health services. And some are backing Democratic proposals to create a U.S. single-payer health system.”
— And here are a few more good reads:
- The American Enterprise Institute holds a discussion on the "winners and losers of Medicare for All, Obamacare, and other health care proposals" on Wednesday.
- The Senate Special Committee on Aging holds hearings to examine fall prevention, and national, state and local solutions to better support seniors on Oct. 16.
- The House Veterans Affairs Subcommittee on Oversight and Investigations holds a hearing on VA systems for protecting veterans from clinical harm on Oct. 16.