Moments after signing a proclamation honoring National Nurses Day on Wednesday, and in the middle of a pandemic that has already claimed tens of thousands of American lives, President Donald Trump reaffirmed his support for throwing out the Affordable Care Act.
While speaking with reporters in the Oval Office Wednesday, Trump was asked about a federal lawsuit, Texas v. California, which was brought by a coalition of Republican state attorneys general and seeks to have the landmark health care law thrown out entirely.
“Obamacare is a disaster, but we’ve made it barely acceptable,” Trump said.
Wednesday was the deadline for the Department of Justice to file a brief in the case, which will be heard by the US Supreme Court this October. DOJ’s brief agrees with the litigants and asks the Court to rule the entire law unconstitutional — instead of a more narrow request that the Court throw out only the law’s preexisting conditions as the Trump administration had asked for at one point in 2018. US Attorney General William Barr had lobbied the president to revert to that previous position in the middle of the coronavirus pandemic, according to a Politico report.
While Vox’s Ian Millhiser notes that it’s unlikely SCOTUS will overturn the law, the outcome is not certain. And doing so without an adequate replacement would kick millions of Americans off their insurance. The Urban Institute reviewed the likely consequences of tossing out the law:
It would also have consequences for the country’s future — potentially devastating ones regarding the country’s ability to combat the coronavirus pandemic, and interesting ones in this fall’s general election.
The ACA has divided the Trump administration for a long time
This is not the first time Trump has gone against the advice of his highest-level advisers on the lawsuit. When originally argued in district court in northern Texas, the DOJ argued not for the ACA to be thrown out, but instead to scrap smaller portions of the law, like protections for patients with preexisting conditions.
But after federal Judge Reed O’Connor ruled that the whole law should be thrown out, the administration changed its position on the suit. In a terse two-sentence note submitted to the Fifth Circuit Court of Appeals, which by that point had taken up the case, the administration came out in support of O’Connor’s position.
“The Department of Justice has determined that the district court’s judgment should be affirmed,” wrote three Justice Department lawyers. “[T]he United States is not urging that any portion of the district court’s judgment be reversed.”
The administration’s decision was reportedly driven by then-domestic policy chief Joe Grogan and acting director of the Office of Management and Budget Russ Vought, both close allies of then-acting White House Chief of Staff Mick Mulvaney, according to a Politico report last March. Mulvaney was a founding member of the House Freedom Caucus when he was a Congress member from South Carolina.
According to the Politico report, Barr and Health and Human Services Secretary Alex Azar opposed changing the DOJ position in the suit, putting Barr in the awkward position of running the department responsible for arguing the case. Supporting throwing out the law without a viable Republican plan to replace it, they argued, would play badly electorally.
At the time, HHS spokesperson Caitlin Oakley denied that Azar opposed the administration’s new position in the case to Politico. “Any insinuation that Secretary Azar has ‘butted heads’ with Mulvaney on this issue is false,” she said in a statement.
The timing of the case means that a SCOTUS decision will likely come after this fall’s general election. That won’t stop Democrats from hammering Republicans on the issue throughout the campaign season.
Former Vice President Joe Biden, the presumptive Democratic nominee, released a statement Wednesday denouncing Trump’s decision to follow through his support for the suit. “By siding with the Republican Attorneys-General who are seeking to invalidate the ACA in the U.S. Supreme Court, Trump has made clear where his priorities lie,” he wrote, saying that Trump doesn’t side with people with preexisting conditions or those who may develop preexisting conditions due to Covid-19, the disease caused by the coronavirus.
“Trump has decided he’d rather destroy President Obama’s legacy than protect the health care of millions upon millions of Americans. He’d rather look after the profits of the insurance industry than make sure people can access healthcare in their hour of need. It’s despicable,” Biden said.