It had seemed that everyone had forgotten about Obamacare, but this week the Trump Administration, apparently deciding that the president’s vindication in the Mueller report had gotten too much press, said that it believes that courts should strike down the entire Affordable Care Act. The sudden and short announcement came Monday as the Department of Justice notified the Fifth Circuit Court of Appeals that it supports a December ruling striking down the law.
“The Department of Justice has determined that the district court's judgment should be affirmed,” three Justice Department lawyers wrote. “The United States is not urging that any portion of the district court's judgment be reversed.”
The appeals court is currently reviewing a December ruling by U.S. District Court Judge Reed O’Connor, a George W. Bush appointee, who said that Congress’s decision to scrap the penalty for failing to purchase health insurance meant that the entire law should be struck down. The decision was immediately appealed by a group of states defending the law led by California Attorney General Xavier Becerra.
“The Individual Mandate ‘is so interwoven with [the ACA’s] regulations that they cannot be separated. None of them can stand,” O’Connor wrote.
The Trump Administration had previously argued that community rating and guaranteed issue of policies should be struck down, but that the rest of the law should be upheld. The two provisions benefit people with pre-existing conditions who want to buy health insurance after they become ill.
The announcement by the Justice Department comes almost two years after Republicans were unable to repeal or reform the Affordable Care Act in President Trump’s first year in office. While the health insurance law has largely withstood attempts to repeal or change it, a provision was inserted into the Tax Cuts and Jobs Act that repealed the individual mandate. The tax reform law passed in December 2017.
As the lawsuit against Obamacare winds its way through the judicial system, Congress is at a stalemate on the law. Republicans promised to repeal the law but don’t have the votes to do so. Even a “skinny repeal” using a budget reconciliation requiring only 51 votes failed after several Republican senators expressed concern about coverage for pre-existing conditions. For their part, many Democrats acknowledge that Obamacare needs to be reformed. The party is united in opposition to repeal but can’t agree on how to fix the law.
In the meantime, the one effect that the Republican repeal effort has had is to make Obamacare more popular. Voters opposed the law until April 2017 when doubts about Republican bills suddenly caused a surge in popularity for the Affordable Care Act. Support for Obamacare hit an all-time high just before the 2018 elections when Reuters found that 60 percent opposed repeal.
The lower court ruling and the Trump Administration’s support for it are the equivalent of throwing a live grenade into the 2020 elections. Where health care was not a large issue, it is suddenly reemerging as a hot topic for voters and Republicans incumbents are likely to start jumping for cover.
Even though Obamacare has never been popular within the GOP, many Republican voters are among those who do support various aspects of the law. Coverage for preventive care with no out-of-pocket expenses, protections for pre-existing conditions, and coverage for dependents up to age 26 have broad support across party lines.
Regardless of its popularity, the Affordable Care Act has not achieved its purpose. The growth rate in health care spending has declined only marginally and health insurance premiums have continued to steadily increase. The law never eliminated the problem of uninsured Americans although it reduced the uninsured rate to 8.8 percent by 2018. Today, the share of Americans without adequate health insurance is essentially unchanged since 2010.
Nine years after its passage, the Affordable Care Act remains a drag on the economy and the high cost of health care is still a problem that needs to be fixed. With the parties unable to reach an agreement on how to reform the health law, the possibility that the Supreme Court could strike down Obamacare in its entirety introduces a new uncertainty into next year’s elections. The timing of the case could once again force Republican incumbents to choose between pleasing the Republican base or the majority of voters.
Originally published on The Resurgent