Suicide mission? Republican Senate majority leader Mitch McConnell (left) and senator Roy Blunt (right) with president Donald Trump before a meeting on Capitol Hill to discuss a renewed push to repeal Obamacare. Chip Somodevilla/EPA/Pool
Barely a day after attorney-general William Barr’s summary of the Mueller report delivered the exoneration he had sought, Donald Trump brought the Republican celebratory mood to an abrupt halt by shifting the focus, yet again, to Obamacare.
Following a series of exuberant tweets and retweets proclaiming “No Collusion, No Obstruction, Complete and Total EXONERATION. KEEP AMERICA GREAT!” and just hours after he and his allies vowed to pursue and punish the traitors responsible for the Russia investigation, Trump trod all over his own messaging to highlight yet again that he is “at his most manic and self-destructive” when he feels he is winning.
Early last week, after a contentious meeting in the Oval Office, his acting chief of staff Mick Mulvaney persuaded Trump to have the Department of Justice join a lawsuit brought by Republican state attorneys-general to invalidate the entire Affordable Care Act on constitutional grounds. In doing so, he apparently went against the advice of his attorney-general and his health and human services secretary. Suddenly the issue of the day, the week, perhaps even the whole 2020 presidential campaign, was healthcare — and that can only bring pain and failure to Republicans. The decision could be House speaker Nancy Pelosi’s best-ever birthday present.
Unfortunately for congressional Republicans and fortunately for congressional Democrats, Trump’s bull-in-a-china-shop foray didn’t stop with the Department of Justice’s letter to the federal appeals court. Driven by hubris, vengeance, arrogance or simply the need to be the centre of attention, goaded by reminders of his failure to deliver on key election commitments, determined to undermine his predecessor’s legacy (and perhaps even that of senator John McCain, whose vote to save Obamacare has always irked him), Trump upped the ante another notch.
Republicans will become “the party of healthcare” he declared. They will have a “far better plan than Obamacare,” which was “a disaster,” “something we can’t live with” and “far too expensive for the people, not only for the country.” The man who once said “nobody knew that healthcare could be so complicated” now says he understands healthcare “especially very well.” Maybe, but he doesn’t understand the politics of healthcare.
Trump’s strategy faces at least three difficulties. To begin with, the Department of Justice’s support for the action against the Affordable Care Act is a dereliction of its duty to defend the law. The genesis of the legal attack on Obamacare is a challenge by Republican states to the scheme’s mandates (for individuals to have health insurance, for cover for pre-existing conditions, and for a package of essential benefits). In December, the federal judge in Texas who heard the case (a George W. Bush appointee) struck down the entire Affordable Care Act on the grounds that its requirement for people to buy health insurance is unconstitutional and the rest of the law cannot stand without it. In his ruling, the judge said that the mandate “can no longer be sustained as an exercise of Congress’s tax power” because, in 2017, the Republican-controlled Congress eliminated the financial penalty for not having health insurance.
Legal experts across the political spectrum have called the ruling “insane” and say it is so flawed that it will be overturned on appeal. The Department of Justice initially said that the right remedy was to keep the law, yet it declined to defend not just the individual mandate but also the provisions that protect people with pre-existing conditions. That prompted a coalition of sixteen states and the District of Columbia, led by California, to intervene, arguing that the Department of Justice is flouting the duty to defend the provisions at the very core of the legislation.
The department’s new position potentially delivers unimagined chaos. The Affordable Care Act is not a minor statute that can be cast off without disruption; it is a decade-old law that offers healthcare cover and protections to almost all Americans, affects how hospitals and doctors bill, ensures preventive services, addresses health inequalities, and regulates Medicare costs and Medicaid expansion. It is an integral part of the national healthcare system. Ripping up the law would inflict untold harm and costs on the system and the people who depend on it.
The law will be vehemently defended. The appeals court is likely to uphold the case, though there is a possibility it could go to the Supreme Court. If so, resolution of the uncertainties could take years.
The second problem Trump faces is the congressional Republicans’ lack of preparedness. Burned by numerous previous failures to repeal Obamacare, they not only have no replacement legislation ready to go, they have no plans to develop such legislation. Senate leader Mitch McConnell is not looking to convene a working party as he did in 2017, and no hearings are planned by the relevant Senate committees; indeed, senator Chuck Grassley, chair of the Senate finance committee, stated, “Obamacare is not going to be replaced unless the courts would declare it unconstitutional.”
The Republican senators’ stance is that the White House must put forward its own proposal or, better yet, drop the idea. Almost a decade after the enactment of Obamacare, they have yet to move beyond the repeal rhetoric and agree on anything that could be a viable replacement.
Trump seems undeterred by the pain of the Republicans and the delight of the Democrats. Late last week he claimed to have a team working on a proposal. He named senator John Barrasso (R-Wyoming), who has sponsored a bill to repeal the health insurance tax and has legislation promoting inexpensive, short-term healthcare insurance; senator Bill Cassidy (R-Louisiana), who was a lead author of the 2017 legislation that would have turned Obamacare subsidies and Medicaid into block grants to the states which could then spend the money however they determined; and senator Rick Scott (R-Florida), who is focused on the cost of prescription drugs.
“They are going to work together, come up with something that’s really spectacular,” Trump said. “Maybe we’ll even get support in the House from Democrats. But it’s going to be far better than Obamacare.” No one else has such high expectations.
The third problem for Trump’s plans is that he clings to the belief that he can undo Obamacare by court order rather than by legislative action. Simultaneously this past week, several court cases have pushed back against the administration’s attempts to weaken Obamacare. A federal judge struck down work requirements for Medicaid recipients in Kentucky and Arkansas, ruling that the requirements were “arbitrary and capricious” and exceeded Medicaid’s mission to provide health coverage to the needy. The decision is a major loss for the Trump administration on one of its signature health policy crusades and could affect six other states that have imposed similar rules and seven other states that have applied to do so.
A second major defeat came when a Department of Labor rule that allows small businesses to band together and set up health insurance plans was found to be unlawful. The judge described the rule as “absurd” and found that it was clearly designed to undermine the Affordable Care Act and “does violence” to the Employee Retirement Income Security Act of 1974, the framework for employer-sponsored health plans covering tens of millions of Americans.
Meanwhile, in the House of Representatives, Nancy Pelosi and senior Democrats have introduced a bill to strengthen Obamacare. The legislation is aimed at protecting people with pre-existing conditions, capping how much premiums for insurance purchased on Obamacare exchanges could rise, and protecting coverage for prescription drugs and maternity care. “The GOP will never stop trying to destroy the affordable healthcare of America’s families,” Pelosi said. “In this House, with a Democratic majority, we’re here to strengthen those protections and to lower healthcare costs.”
Republicans are keen to challenge these provisions and to highlight divisions among Democrats over proposals for a Medicare-for-All system, which Republicans characterise as a dangerous lurch towards socialism. But they find themselves busy confronting angry constituents concerned that they will lose their health insurance.
Polling suggests that the popularity of Obamacare has increased in response to the Trump administration’s attacks. Republicans find themselves fighting against a law that has gone from being unpopular to popular within a few years. And Democrats can position themselves as fighting to defend its popular provisions rather than having to justify those that are less popular. Healthcare was the biggest issue for voters in the 2018 midterm elections (besting Trump, the economy and immigration, according to a Washington Post analysis of exit poll data from sixty-nine battleground districts) and it will likely be so again in 2020.
Ironically, the states that would be hardest hit by the loss of Obamacare are those that voted strongly for Trump in 2016. For example, a high percentage of people in West Virginia, Mississippi, Kentucky, Alabama and Tennessee have pre-existing conditions. These states are also among those severely affected by the opioid epidemic.
In the midterms Idaho, Nebraska and Utah passed ballot initiatives to expand Medicaid. Interestingly, in red states Medicaid expansion is more popular than Obamacare, giving some optimism that even in Republican territory there is support for a more universal approach to healthcare — if not Medicare-for-All, then perhaps Medicaid-for-Many?
The message from this past week is that Trump and his administration have signalled — loud and clear — that the campaign against Obamacare is not over, and they will stop at nothing to achieve this. But two years of the Trump presidency indicate that last week’s priority may well be overtaken by new grievances and forgotten by next week. Republicans running in 2020 are hoping that Trump does not pick the scab off old, painful political wounds. •