In a significant shift, the Justice Department now says that it backs a full invalidation of the Affordable Care Act, the signature Obama-era health law.
It presented its position in a legal filing Monday with the U.S. Court of Appeals for the 5th Circuit in New Orleans, where an appeal is pending in a case challenging the measure’s constitutionality. A federal judge in Texas ruled in December that the law’s individual mandate “can no longer be sustained as an exercise of Congress’s tax power” and further found that the remaining portions of the law are void. He based his judgment on changes to the nation’s tax laws made by congressional Republicans in 2017. [...]
If the Justice Department’s position prevails, it would potentially eliminate health care for millions of people and cause disruption across the U.S. health-care system — from removing no-charge preventive services for older Americans on Medicare to voiding the expansion of Medicaid in most states. A court victory would fulfill Republican promises to undo a prized domestic accomplishment of the previous administration but leave no substitute in place.
Why would the administration do something that is both so substantively horrifying and so politically bonkers? I have a theory, one rooted in President Trump’s unusual approach to both ideology and politics.
But first, let’s be clear about just what it would mean if they prevailed.
This lawsuit was brought by a collection of Republican states, which filed it in a particular district in Texas precisely so it would be heard by Judge Reed O'Connor, who has a well-earned reputation as a partisan Republican. Yet when he did what they wanted and ruled that the entire ACA should be wiped from the books, even many conservatives were aghast (see here or here), as they realized what the fallout would be if their long-standing effort to destroy the ACA were to actually succeed.
And what would that fallout be? Never in our history has the health-care system undergone an upheaval such as what the Trump administration and other Republicans are seeking. It would be an absolute catastrophe for tens of millions of Americans.
The expansion of Medicaid would be rolled back, snatching coverage away from millions of Americans. So would the subsidies that millions more receive to afford coverage. Protections for preexisting conditions? Gone. Insurers would once again be able to deny you coverage if you’ve ever been sick or had an accident. Young people allowed to stay on their parents’ plans until age 26? Not anymore. Women could once again be charged more for insurance than men. Yearly and lifetime caps on coverage would come back, as would the Medicare prescription drug “donut hole.” Rural hospitals would be starved of funding and would close.
That covers just a portion of what the ACA does. There are dozens of other provisions that in the years since the law was passed have profoundly altered the shape of the American health care system. To just chuck it out the window would be an instant cataclysm. As the ordinarily measured Nicholas Bagley puts it, “The notion that you could gut the entire ACA and not wreak havoc on the lives of millions of people is insane.”
Just a couple of important numbers: As a recent Urban Institute analysis concluded, eliminating the ACA would cause 19.9 million Americans to lose their health coverage. The Kaiser Family Foundation estimates that 52 million Americans, or more than a quarter of all non-elderly adults, have a preexisting condition that could shut them out of health coverage were the ACA not in place.
Especially after health care was the most important issue of the 2018 election, in which Republicans desperately tried (and failed) to convince voters that they’d protect people with preexisting conditions, it’s difficult to find words to adequately describe how politically stupid it is for the administration to take this position.
Which brings us to my theory about why such a thing could happen. When he ran for president, Trump made lots of noises that suggested he was something of a moderate, at least on a few issues. He’d claim that he’d protect Medicare and Social Security, and even promised that he’d provide “insurance for everybody.” But no one really took those statements seriously, because it was obvious that outside of trade and immigration, Trump has no particular beliefs about any issues, much less a coherent ideology that guides him.
But instead of producing moderation, Trump’s ideological blurriness led to a more conservative set of administration policies. His own beliefs provide no borders within which his aides are required to work. And since he is so corrupt and personally despicable, many of the more sensible Republican policy wonks who would have staffed a different Republican administration chose to stay away, leaving the administration to be filled either by people who shared Trump’s penchant for self-dealing or by extremist ideologues who correctly surmised that a president who didn’t care about policy would give them free rein to indulge their wildest fantasies.
Now add in the fact that unlike other Republican presidents, Trump sees no political advantage in expanding his support. He firmly believes that his political survival depends only on keeping his most ardent supporters satisfied with what he’s doing while also keeping them agitated and angry at his opponents. So there is never a moment when Trump will say, “Hold on, that’s going too far — moderate and independent voters will be angry if we do that.”
When you combine these two factors — Trump’s indifference to policy, and his desire to play to his base and only his base — the result is an administration that is in many ways more conservative than any in modern history.
For them, the thought of taking away health coverage from tens of millions of Americans and removing vital protections from tens of millions more isn’t an unfortunate consequence of their effort to destroy the Affordable Care Act; it’s the whole point. That’s what victory looks like to them.
Unless, of course, someone stops them. Don’t be surprised if that someone is Chief Justice John G. Roberts Jr., who is smart enough to know when the Republican Party needs to be saved from itself. But even if Roberts winds up joining with the liberals on the Supreme Court to rule against the administration and send this abomination of a lawsuit where it belongs, the Democrats just had much of their 2020 campaign written for them.