Trump vowed as recently as last weekend, at a campaign rally in Tulsa, that he would “always protect patients with preexisting conditions, always, always.” But his own administration’s position in court is that the 2010 Affordable Care Act’s individual mandate is unconstitutional, and therefore so is the entire law — even its most popular provisions, such as coverage for those with preexisting conditions.
“Nothing the 2017 Congress did demonstrates it would have intended the rest of the ACA to continue to operate in the absence of these three integral provisions. The entire ACA thus must fall with the individual mandate,” the brief said.
On Saturday, Trump tweeted that his administration is “asking the Supreme Court that Obamacare itself be terminated so that it can be replaced with a FAR BETTER AND MUCH LESS EXPENSIVE ALTERNATIVE.”
Republican officials and strategists working on competitive campaigns were privately aghast Friday at the administration’s decision to reignite the issue, particularly as health care is at the forefront of voters’ minds because of the ongoing coronavirus pandemic.
The ties between the pandemic and access to Obamacare were underscored this week with a new report from the Centers for Medicare and Medicaid Services, which found that 487,000 Americans used a special enrollment period for the health care law after losing their own coverage, probably due to job losses.
“To take that issue to the Supreme Court, in the middle of a pandemic, shows that there’s a lack of understanding about the fear out there in this country,” said Rep. Debbie Dingell (D-Mich.), who hails from one of the most closely watched presidential battleground states. “I think that we need to talk about it so that people understand what’s going on.”
The potency of health care as an issue was evident in advance of the filing, with Democrats — anticipating the Thursday deadline for the Justice Department to respond in the case — eagerly holding media calls promoting the Affordable Care Act and attacking incumbent Republican senators for their attempts to repeal it or insufficiently defend it.
In Maine, Democrat Sara Gideon, who is running against Sen. Susan Collins (R), criticized the four-term senator for casting a “key vote” that prompted the legal challenge from the Republican attorneys general. Collins has voted against repealing the health care law, but supported a separate law enacted in 2017 that effectively eliminated Obamacare’s requirement that everyone hold insurance.
Collins, in a statement Friday, said the Justice Department arrived at the “wrong conclusion” in its argument in court, saying it was never the intent of lawmakers to repeal the entire health care law when the Republican-controlled Congress got rid of its individual mandate through the 2017 tax cut bill.
“The administration’s decision to submit this new brief is the wrong policy at the worst possible time as our nation is in the midst of a pandemic,” Collins said in a statement to The Washington Post. “The Affordable Care Act remains the law of the land, and it is the Department of Justice’s duty to defend it.”
But with its legal filing, the Trump administration directly contradicted that position, arguing that even provisions regarding preexisting conditions or high-risk medical histories could not be severed from the mandate.
The administration’s aggressive argument against Obamacare comes amid heightened concerns from Republicans about their overall electoral fortunes this fall due to the president’s handling of the cratering economy, a national uprising over racism and the ongoing coronavirus pandemic.
Democrats have largely credited their winning back the House majority in 2018 to health care, and they’ve seized on Trump and congressional Republicans’ repeated efforts to repeal it in campaigns. The GOP mantra for a decade has been “repeal and replace,” but the party has never been able to coalesce around an alternative.
Presumptive Democratic presidential nominee Joe Biden also jumped on the issue this week, saying during a campaign swing in Pennsylvania on Thursday that Trump’s “twin legacies” are “his failure to protect the American people from the coronavirus, and his heartless crusade to take health-care protections away from American families.”
At a virtual fundraiser Friday, Biden said, “Millions have contracted coronavirus, people need a lifeline. And they don’t need a president suing to deny them health care.”
The Biden campaign put an emphasis on the Trump administration’s move against the Affordable Care Act on Friday, hosting events with surrogates designed to draw a sharp contrast with the president.
Former second lady Jill Biden and Sen. Kamala D. Harris (D-Calif.) held a virtual event with supporters in Wisconsin, a key battleground. “This administration is trying to take health care away from million of Americans. That’s it,” said Harris, who is under consideration to be Biden’s running mate.
Jill Biden promoted the steps Biden would take to add to the ACA, rather than tear it down. She mentioned his support for an optional public insurance program, among other things.
“This matters to Joe,” she said. “And you matter to him.”
A Kaiser Family Foundation poll this month found that 53 percent of voters trust Biden more on health care issues, compared with 38 percent for Trump. And according to internal Democratic polling of key Senate battleground states conducted in May, GOP support for the legal challenge against Obamacare was the top negative against Senate Republicans, particularly among swing and independent voters, according to a party official familiar with the numbers who spoke on the condition of anonymity to discuss the findings.
“Americans should look at what the Trump administration and Republicans do — not what they say — on health care,” said Senate Minority Leader Charles E. Schumer (D-N.Y.). “Republicans remain unflinching in their cruel and callous campaign to eliminate Americans’ health-care coverage, even as the country faces down the biggest global health crisis in recent history.”
House Speaker Nancy Pelosi (D-Calif.) and Democrats will force Republicans to cast a tough vote on the issue next week. She introduced a bill Wednesday that would broaden the reach of the law and make it available to more Americans.
The bill would penalize states that do not expand Medicaid and expand subsidies for people who buy private health plans in the insurance marketplaces created under the law for individuals and families who do not have access to affordable health-care benefits through a job.
Responding to the court filing late Thursday, Pelosi said Trump and Republicans’ “campaign to rip away the protections and benefits of the Affordable Care Act in the middle of the coronavirus crisis is an act of unfathomable cruelty.”
Health care has also been a dominant theme in televisions spots run this week by Democratic Senate candidates and groups working to elect them, popping up as an issue in ads in Arizona, Montana, North Carolina and Colorado.
In private, Republican officials working on down-ballot races vented their frustration with the administration’s decision to revive the health care fight, while acknowledging that repealing Obamacare remains a core issue for their base. The timing of the filing, amid the pandemic, was also particularly unhelpful, according to Republicans.
“In a sea of stupid decisions this administration makes on a daily basis, this one stands out,” complained one Senate GOP aide Friday, granted anonymity to candidly assess the White House’s moves.
Some in the Trump administration, including Attorney General William P. Barr, have privately argued parts of the law should be preserved amid a pandemic. In a meeting last month, Barr made that argument with senior officials, but days later, Trump told reporters, “We want to terminate health care under Obamacare.”
Judd Deere, a White House spokesman, said after the brief was submitted that “a global pandemic does not change what Americans know: Obamacare has been an unlawful failure and further illustrates the need to focus on patient care.”
“The American people deserve for Congress to work on a bipartisan basis with the President to provide quality, affordable care,” Deere said.
Oral arguments in the case aren’t scheduled until the next Supreme Court term, which begins in October. It’s unclear whether they will occur before the Nov. 3 election.
Some conservative lawmakers largely shrugged, noting that the Republican Party has tried to overturn the health care law ever since it was enacted in 2010.
“We’ve been trying to overcome the detrimental effects of the ACA for a long time,” said Rep. Douglas A. Collins (R-Ga.), who is running for one of two Senate seats in Georgia. “That was one of the biggest things that I think that the Republican majority, looking back on, I wish that we could have passed and got done.”
Sean Sullivan contributed to this report.
Meagan Flynn and Tim Elfrink contributed to this report.