Policy and Regulation News

Trump Administration Backs Scrapping Entire Affordable Care Act

The Trump Administration is taking a more aggressive stance against the Affordable Care Act as a controversial lawsuit moves through the courts.

Affordable Care Act repeal

Source: Thinkstock

By Jennifer Bresnick

- The Trump Administration is leaving no more ambiguity about its opposition to the entirety of the Affordable Care Act. 

In a brief legal memo released this week, three Department of Justice officials signaled their full acceptance of a December ruling that every component of the ACA is unconstitutional due to Congressional overreach on the individual mandate to carry health insurance.

“The Department of Justice has determined that the district court’s judgment should be affirmed, wrote Joseph Hunt, Assistant Attorney General, Brett Shumate, Deputy Assistant Attorney General, and Martin Totaro, Attorney, Appellate Staff Civil Division.

“Because the United States is not urging that any portion of the district court’s judgment be reversed, the government intends to file a brief on the appellees’ schedule.”

The memo stems from a highly controversial decision by US District Judge Reed O'Connor from Texas.  In a case that the federal government failed to defend, O’Connor argues that Congress did not have the authority to implement the individual mandate

Therefore the “fruits of the unauthorized action” – in this case, the rest of the consumer protections and insurance market infrastructure included in the ACA – are also invalid, the judge said.

Previously, the Trump Administration had held off on fully embracing the implications of the ruling, which was immediately appealed by a coalition of Democratic attorneys general.

But the Administration is no longer hiding its unmitigated opposition to the landmark law. 

“The Department of Justice has determined that the district court’s comprehensive opinion came to the correct conclusion and will support it on appeal,” Kerri Kupec, a spokeswoman for the Justice Department, said in a statement, according to the Washington Post.

While Republican distaste for the ACA is nothing new, previous efforts to tear down the foundations of the healthcare reform package have also included some overtures towards a replacement package, or at least vague gestures for keeping the most popular provisions of the ACA in place.

A Republican-controlled Congress failed on several occasions to pass repeal measures, and GOP lawmakers now have little chance of pushing a repeal through a Democratic House.

Simply embracing the notion that the whole ACA should be scrapped through the court system, rather than by a vote from lawmakers, may be the only way that Republicans can achieve their goal. 

Yet success would leave the nation in danger of catastrophic financial disruption. A bitterly divided Congress is unlikely to agree upon new healthcare reform infrastructure that meets enough of the ideals of both parties, leaving tens of millions of consumers to bear the brunt of partisan politics with no relief in sight.

In addition to derailing the health system’s progress towards value-based contracting, state Medicaid expansion would be deemed invalid, and insurance companies would no longer be required to provide essential health benefit coverage or protections for people with pre-existing conditions.

The Administration has already made significant efforts to undermine the provisions of the law by using its regulatory authority to expand the sale of short-term limited duration insurance (STLDI) and association health plans (AHPs), both of which mimic pre-ACA offerings – and both of which are also known as “junk insurance” by detractors.

The change in position comes just as Speaker of the House Nancy Pelosi is teasing the release of a Democratic health plan to reinforce the ACA and expand coverage options for consumers. 

Progressive Democrats have been leaning even further into the idea of a single-payer health insurance system, sometimes called Medicare for All, which has riled Republicans to no end.  These plans also have little chance of getting through a divided legislature, but are becoming a strong focal point of the upcoming 2020 election season.

The Texas federal court case is currently moving up to the Fifth Circuit court on appeal.  It is likely that the Supreme Court will hear the arguments eventually.  Until then, the Affordable Care Act does remain the law of the land.