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Trump's new plan to kill Obamacare is dubious. There is a chance it could work.

The administration is backing a lawsuit that could dismantle the ACA.

by Emma Ockerman
Mar 28 2019, 3:22pm

The Trump administration's decision to throw its full weight behind a lawsuit that would tear down the Affordable Care Act backs a lawsuit experts say is built on a shaky argument — and might very well wind up before the Supreme Court. If it gets there, there is a chance it could work.

The Department of Justice says it agrees with a Texas-based judge’s decision in December to unravel the entire health-care law, and wrote in a legal filing Monday that the Texas ruling “should be affirmed.” (Ordinarily, federal attorneys would defend existing law.)

But legal scholars have questioned whether the Texas judgement, which has been appealed and is making its way through a court in New Orleans, is even legally tenable. It essentially argues that the whole program should be null because of Congress’ 2017 decision to get rid of a tax on people who failed to carry health care — a key element of the law. The ACA remains in effect while the case is winding through the appeals process.

The DOJ's move caught Republicans by surprise, and reportedly came against the advice of Attorney General William Barr. And with 2018 midterm losses still fresh in their minds, some Republicans aren’t happy Trump is picking this fight now with a program that's broadly popular with Americans.

And Trump’s most recent attack on the ACA could wind up before a newly conservative Supreme Court.

The DOJ announcement came in what otherwise would have been a politically winning week for Trump, who was just relieved of allegations that he colluded with Russia to influence the 2016 election. Critics have pointed out that dismantling the ACA would harm voters in the Midwestern and Appalachian states that helped elect him.

“The Republican Party will become ‘The Party of Healthcare!’” Trump wrote in a tweet on Tuesday.

Killing the ACA on a technicality

The lawsuit against Obamacare, brought by a coalition of 20 conservative state attorneys general last year, seemed fraught at best.

“The Trump administration has distorted Congressional intent.”

It basically argues that since a tax penalty on individuals who don’t carry insurance is gone, the whole law should be void — a legal principle known as “severability.” (The penalty, known as the individual mandate, was cut after Republicans passed a sweeping tax reform bill in December 2017.) Several legal experts have said publicly that they disagree with that argument because the individual mandate is only gone due to the tax reform bill. Plus, Congress determined the tax was unenforceable — not unconstitutional.

Yale University law professor Abbe Gluck asserts the Trump administration "has distorted Congressional intent,” because the body voted to keep the law in 2017.

Plus, the DOJ already took a position when it said it would defend parts of the law last year. It’s not clear why they’re changing their position now, Gluck said. Especially as Barr reportedly advised the administration against the reversal.

The lower court’s ruling is currently winding its way through the U.S. Court of Appeals for the Fifth Circuit in New Orleans. It could be months before the case sees a ruling.

The fear among some Democrats and health advocates now is that the lawsuit will land before the newly-conservative Supreme Court, which cemented a right-leaning majority with Justice Brett Kavanaugh's confirmation last year. The conservative court, which upheld the individual mandate’s constitutionality in 2012, could be more likely to uphold the judge’s decision.

Kavanaugh has been skeptical of the ACA and its individual mandate in the past and wrote dissents in two cases that challenged the law’s constitutionality.

What happens if the law is taken away

At present, the Trump administration doesn’t have an alternative for the ACA. That means if the law were to suddenly disappear, America’s health care system would be thrust into chaos as hospitals, insurers and patients rushed to figure out how to offer and pay for treatment.

Right now, the law protects as many as 129 million Americans with pre-existing conditions, who could be stuck with higher monthly health insurance bills if Obamacare’s protections got stripped away.

The law, which expanded access to the government’s health care program for poor people, covered 12 million people through Medicaid expansion. It popularly requires insurers to provide free preventive care, such as vaccinations, mammograms, and yearly physicals. It protects patients against discrimination from their insurers.

Critics pointed out that repealing the law would also harm two groups of people — opioid users and people living with HIV — that Trump pledged to help in his State of the Union address.

“It’s absolutely hypocritical to say we can repeal the Affordable Care Act and simultaneously create access for people for treatment,” Michael Botticelli, Obama’s director for the White House Office of National Drug Control Policy and executive director at Boston Medical Center’s Graken Center for Addiction, said. He added: “Simply put, people will die” if the law is repealed.

Cover: Medal of Honor Ceremony with President Donald Trump at the White House in Washington, DC on March 27, 2019. (Photo by Michael Brochstein/Sipa USA)(Sipa via AP Images)