By James Hohmannwith Mariana Alfaro
June 26 at 10:48 AM - The Washington Post
President Trump insists on the campaign trail that he wants to protect insurance coverage for people with preexisting conditions. His legal team just told the Supreme Court otherwise.
The 82-page brief submitted late Thursday night by Trump’s representatives states crisply that the president wants to get rid of every provision of the Affordable Care Act.
Solicitor General Noel Francisco packs in a string of rhetorical flourishes that may draw cheers at a Federalist Society legal conference but will inevitably appear as factual citations to back up attack ads that Democrats plan to run this fall against vulnerable Senate Republicans, in a redux of the messaging that proved so potent in the 2018 midterms.
President Trump celebrates the passage of the tax bill with congressional Republicans in December 2017. His lawyers now say everyone who voted for this bill did so intending to get rid of the Affordable Care Act. (Jabin Botsford/The Washington Post)
The Trump team’s core argument is that every Republican who voted for the tax cuts three years ago knowingly voted to destroy the 2010 law in its entirely, not just to get rid of the mandate that individuals buy health insurance. And, because the Supreme Court previously upheld the constitutionality of the law on the grounds that the individual mandate is a tax, Trump’s lawyers say that the whole system became invalid once Congress got rid of the penalty for not carrying health insurance.
“Nothing the 2017 Congress did demonstrates it would have intended the rest of the ACA to continue to operate in the absence of these ... integral provisions,” Francisco writes in his brief, which is co-signed by four other Trump appointees at the Justice Department. “The entire ACA thus must fall with the individual mandate.”
The brief is full of little gifts like this to Joe Biden and Democrats who hope to ride his coattails down the ballot. Sen. Susan Collins (R-Maine) voted against repealing Obamacare in 2017, which she touts as evidence of her independence, but then she voted for the tax legislation. This brief can also be used as a cudgel to attack GOP Sens. Thom Tillis (N.C.), Joni Ernst (Iowa) and David Perdue (Ga.), who separately each voted to repeal the underlying law. Recent polls show those three senators are locked in tight races as they seek second terms. Appointed Sen. Martha McSally (R-Ariz.), who trails Democratic challenger Mark Kelly in multiple polls, also voted for the tax bill as a member of the House.
From a political perspective, the timing of the Trump administration’s maneuver to get rid of the law, root and branch, is suboptimal for GOP candidates on the ballot this year. The justices are unlikely to make a final decision until after the November election on the legal challenge by Republican state attorneys general, ensuring that this looms as an issue in the fall campaign.
The Centers for Medicare and Medicaid Services revealed earlier Thursday that 487,000 people signed up for health-care plans during the special enrollment period on Healthcare.gov after losing their employer-covered plans, probably as a result of the economic crisis caused by the novel coronavirus.
Biden, the presumptive Democratic presidential nominee who was vice president when the law was enacted, began a concerted effort during a campaign stop in Pennsylvania on Thursday afternoon to link Trump’s response to the coronavirus with his bid to uproot the ACA. He argued that having survived covid-19, the disease caused by the coronavirus, could be considered a preexisting condition and said this could be used to deny coverage.
“Those survivors, having struggled and won the fight of their lives, would have their peace of mind stolen away at the moment they need it most,” Biden said. “They would live their lives caught in a vise between Donald Trump’s twin legacies: his failure to protect the American people from the coronavirus, and his heartless crusade to take health-care protections away from American families."
The House joined the opposition to the lawsuit when Democrats took control of the chamber last year. “Trump and the 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,” Speaker Nancy Pelosi (D-Calif.) said in a statement responding to the new brief. “If President Trump gets his way, 130 million Americans with pre-existing conditions will lose the ACA’s lifesaving protections and 23 million Americans will lose their health coverage entirely.” (The 23 million figure comes from a recent analysis by the liberal Center for American Progress think tank.)
To be sure, Trump’s team maintains that the president still wants to protect people with preexisting conditions but with a new law that replaces the ACA. But he has never presented a plan for how to do so.
White House spokesman Judd Deere said in a statement that “Obamacare has been an unlawful failure” and “the American people deserve for Congress to work on a bipartisan basis with the President to provide quality, affordable care.”
Perhaps the American people do deserve that, but there is no indication it would actually happen if the law got struck down.
In the wake of the killing of George Floyd in police custody, for example, it has become increasingly clear that no meaningful federal legislation will be enacted on police reform before the election. Last night, the House advanced a bill drafted by Democrats that would limit qualified immunity for police officers and ban chokeholds, but Trump has threatened to veto it. And a competing proposal in the Senate was filibustered earlier this week after Republicans in that chamber declined to try to negotiate a compromise with Democrats. Similarly, despite the numerous mass shootings of recent years, the Senate has failed to pass any gun control measures.
Privately, some in the Trump administration have urged the president to argue for preserving some parts of the law to avoid political fallout for Republicans in November, especially amid the pandemic. Attorney General Bill Barr reportedly made that case during a private meeting at the White House last month. But he was overruled.
“If Donald Trump refuses to end his senseless crusade against health coverage,” Biden said Thursday in Lancaster, Pa., “I look forward to ending it for him.”