On Sunday evening, the Washington Examiner, probably the White House’s favorite media outlet, had a scoop: President Trump’s advisers have been secretly meeting with conservative think tanks to develop a health-care bill that could replace the Affordable Care Act (better known as Obamacare). Despite the narrative that Trump’s administration did not have any replacement in the works should Obamacare be thrown out by the courts — a possibility the administration officially endorsed last week — there was an effort, a secret effort, that reinforced Trump’s argument that the White House was “working on a plan.”
"I don’t think there’s anything that’s fully formed,” one analyst who spoke with the Examiner said. “I think a lot of the devil’s in the details."
The timing on the Examiner report was useful, coming several hours after acting White House chief of staff Mick Mulvaney appeared on Sunday morning news programs to, among other things, defend the decision to support throwing out Obamacare entirely. Mulvaney was questioned on the subject by ABC News’s Jonathan Karl and CNN’s Jake Tapper.
In neither interview did Mulvaney suggest the White House was involved in conversations with policy advocates about how to replace Obamacare. In neither interview, in fact, did Mulvaney suggest those devilish details were at all close to resolution. And in neither interview did he acknowledge how those details submarined the Republican effort to replace Obamacare in 2017 — a failure that happened back when Republicans actually controlled both chambers of Congress.
In fact not only did Mulvaney not suggest there was a robust effort at hand to develop a replacement, he actually suggested the White House did not intend to offer such a proposal.
"We're doing the same thing on this that we did with taxes," Mulvaney told Tapper. "Remember, when we started with taxes, people criticized us for not giving enough details. What did we do? We sent principles to the Hill. I think it was one or two pages. And from that, following the proper legislative process, we got a tremendous tax bill that passed into law, also got rid of the individual mandate at that time just as an added benefit."
Democrats might argue that the “proper legislative process” was followed on the tax bill, but that is neither here nor there for now. The important point is Mulvaney says the White House plans to just send “principles” to Capitol Hill — presumably to the Republican-controlled Senate, as the Examiner writes. (Policy nerds and historians will recall the fight over the need for Obamacare to originate in the House given constitutional requirements about spending bills.)
It is not clear why those principles are not already well-established. Over the course of his campaign and administration, Trump has repeatedly outlined a number of principles he thinks a health-care bill should meet: covering preexisting conditions, offering better coverage than Obamacare does and keeping costs low. While those points are tricky to achieve altogether — the first two make the third awfully hard — they are, at least, Trump’s stated principles.
Mulvaney, who was reportedly one of the key drivers of the administration’s decision to push for Obamacare to be thrown out, tries to argue that the proposals Republicans offered in the past, particularly during the 2017 fight, actually adhered to the Trump guidelines to some degree. That is not true.
Here is how Mulvaney described that effort to Karl.
“Every single plan that this White House has ever put forward since Donald Trump was elected covered preexisting conditions,” he said. “Every single plan that Republicans in the House voted on in the previous Congress covered preexisting conditions. Every single plan considered by the Senate covers preexisting conditions. The debate about preexisting conditions is over. Both parties support them, and anyone telling you anything different is lying to you for political gain.”
Tapper, presented with a similar argument, raised an important point: The legislation that was offered did offer protections for preexisting conditions, with an important caveat.
The bill that passed the Republican-controlled House that year was the American Health Care Act. After it was first introduced, an amendment was added to protect coverage for preexisting conditions — but without ensuring the coverage they received would be affordable. What’s more, the plans for which they were eligible might not actually cover their needs.
“People with preexisting conditions who had a gap in coverage would have been guaranteed insurance, but depending on what their state did, the premiums could have been astronomical,” Larry Levitt, Kaiser Family Foundation senior vice president, told The Washington Post last year. (States were given the ability to apply for waivers altering their own approach to coverage.) “The bill also allowed states to alter the benefits insurers are required to cover, which could affect people with preexisting conditions who need certain types of services or medications.”
Presented with this reality by Tapper, Mulvaney argued that, well, Obamacare was also expensive. One point Tapper did not make was that the Republican health-care bills were estimated to have lower premiums over the long run — because people with more expensive coverage needs would drop out of the markets because the cost of coverage was so high.
The AHCA did not become law after passing the House by four votes because the Republican-led Senate never approved any iteration of a law. That despite it being presented under Senate rules that would have required only a bare majority to pass. Mulvaney pointed a finger.
"We have offered plans in the House. We have offered plans in the Senate. We came up with a bunch of ideas out of the White House," Mulvaney told Tapper. "Yes, they didn't pass, because — primarily because [former Arizona senator] John McCain went back on his word to vote for it in the middle of the night."
McCain was one of three Republicans to vote no on the proposal that came closest to passing the Senate. More than a dozen House Republicans also voted no on the AHCA.
At the heart of Mulvaney’s argument was a claim we have heard before: Trump had to act because Obamacare is unconstitutional. This was the same claim the White House made when it decided to fight against the Deferred Action for Childhood Arrivals program introduced under President Barack Obama. Trump similarly claimed the program needed to end because it was unconstitutional — though, of course, it is the judicial branch, not the executive, which makes such determinations. (Trump’s also been happy to defend a number of policies that were actually thrown out in court.)
"Don't tell me that we're taking action to try and kick people off of health care," Mulvaney said to Tapper. "That's not correct. What we're trying to do is pass a piece of legislation that meets the requirements of the United States Constitution."
The only problems with that particular argument are that, at the moment, Obamacare still stands as constitutional, that Republicans lack the votes in the House to pass any piece of legislation and that eliminating Obamacare, as the White House advocates, would indeed kick people off health care.
A few devilish details, to be sure.