GOP 101: How to Kill the Affordable Care Act

Donald J. Trump‏@realDonaldTrump

The Republican Party will become

“The Party of Healthcare!”

9:58 AM - 26 Mar 2019

With not a single page of a comprehensive alternative healthcare plan presented to anybody, feeling his oats after stating that the Mueller Report totally vindicated him, Donald Trump made the brash tweet noted above. Trump then directed his Attorney General to side with 20 red state attorneys general who secured a federal district court ruling that the entirety of the Affordable Care Act (ACA aka Obamacare) is unconstitutional (see below). Let’s look at the history of Republican opposition to this healthcare legislation.

Republicans in Congress have voted well over 50 times to repeal the ACA since it was passed in 2010. While the Supreme Court gutted the requirement that individuals have healthcare insurance (subsidized for those who needed help) or pay a fine, there have been no successful congressional or judicial efforts to terminate the entire statute. However, on December 20, 2017, the individual mandate to have health insurance was repealed by a GOP Congress starting in January 2019 under provisions of the gigantic tax reform legislation, the "Tax Cuts and Jobs Act of 2017.”

Still, those 20 Republican attorneys general had filed suit – Texas vs. United States – in a Fort Worth Federal District Court – known to be “GOP-friendly” – to hold that the rest of the ACA, not limited in an earlier Supreme Court decision, is unconstitutional and now unfunded without that individual mandate. Simply Congress de facto defunded the ACA by that tax act, so continuing an unfunded law (effectively a repeal, they said) was unconstitutional. To everyone’s surprise, Federal District Court Judge Reed O’Connor agreed in a ruling on December 14, 2018. Was the ACA dead?

Even with GOP control of both houses of Congress, the last serious direct attempt by Republicans in Congress to repeal the ACA went down in flames when the late John McCain cast a deciding vote: “Sen. John McCain stunned much of the US and his party leaders on [July 27, 2018], when shortly before 2 a.m. ET he voted against a ‘skinny’ plan to repeal parts of the Affordable Care Act.

“McCain joined two other Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, who voted against the bill and quashed Majority Leader Mitch McConnell's plan to upend the US healthcare system after 20 hours of debate.” BusinessInsider.com, 7/28/18. Ever since, President Trump, who promised affordable quality healthcare for all – directly or through his minions at the Department of Health and Human Services – has slowly dismembered the statute at every turn, frequently reversed by pro-ACA judicial rulings. But did the tax bill effectively kill the ACA by defunding it? Trump had tried different approaches over his short time in office.

His efforts at sabotaging the rest of the ACA, his own braggadocio that he will watch that healthcare program collapse and help that happen, have been legendary. But Trump’s latest effort tops all of the Trump administration efforts to circumvent the ACA’s mandates against denying coverage or imposing higher costs or caps for pre-existing conditions by approving (exempting) “skinny” plans that simply limit coverage to stated diseases and ailments, by implication eliminating everything else by not mentioning them.  

Even judges appointed by Republican presidents tend to see through that Trump ruse – his pretending to present cheaper alternatives to ACA plans but effectively eviscerating statutory protections. Like this most recent example: “U.S. District Judge John D. Bates on Thursday [3/29] blocked new rules governing so-called association health plans, which let businesses and individuals band together to create group plans that offer less expensive coverage than the Affordable Care Act — but without some of its protections.

“The ruling is a victory for nearly a dozen Democratic state attorneys general who sued to block the policy last year. The judge’s findings come as the Trump administration is renewing its effort to unwind Obamacare by declining to defend it in court… ‘The final rule is clearly an end-run around the ACA,’ Bates, a 2001 appointee of Republican President George W. Bush, said in the ruling… ‘Indeed, as the president directed, and the secretary of Labor confirmed, the final rule was designed to expand access to AHPs in order to avoid the most stringent requirements of the ACA.’” Los Angeles Times, March 30^th.

With the House under Democratic control, the President also knows that another “repeal” or “repeal and replace” bill to undo the ACA can never pass Congress. And even though the GOP probably lost control of the House over its increasingly unpopular stand against the ACA, Trump believes that if the U.S. Supreme Court – now with a conservative majority – hears the appeal in Texas vs. The United States, it just well might rule in support of the Judge O’Connor’s ruling. The ACA would die. If he couldn’t kill the ACA directly by Congressional vote, Trump now had a path through a judiciary that his appointments have moved severely to the right.

If the ACA could be gone, reasons Trump, Democrats must be aware that healthcare will thereafter be defined by what can pass a Republican Senate and a be signed by a Republican president. Medicaid expansion will collapse, exemptions for less than full coverage will be allowed (hence blasting those with pre-existing conditions), anything related to women’s reproductive rights will vaporize and expect reduced if any coverage for addiction and mental health issues. And that’s assuming that the GOP can do what it has dramatically failed to do in a decade: offer up a genuine national healthcare plan at any level. Republicans have never been remotely able to come together on a viable plan; those on the extreme right (the Freedom Caucus, for example) do not want any ubiquitous government plan at all, so they have stopped a GOP proposal every time.

The March 26^th Journal from the American Bar Association explains Trump’s plan to support Judge O’Connor’s ruling to take down the ACA completely: “The U.S. Department of Justice told a federal appeals court [5^th Circuit] Monday evening [3/26] that it agrees with a federal judge who struck down the entire Affordable Care Act as unconstitutional.

“The DOJ stance is a ‘major shift’ from its position when Jeff Sessions was attorney general, CNN reports. Lawyers under Sessions had argued that only parts of the Obama-era health care law were unconstitutional after Congress effectively repealed its tax penalty in 2017 for people without insurance. Other publications with articles include the National Law Journal, the Washington Post and Politico.

“The U.S. Supreme Court had upheld the law’s individual mandate in 2012 under Congress’ taxing power… After Congress reduced the tax penalty to zero, Sessions had refused to defend the law’s requirement for individuals to buy health insurance, known as the individual mandate. He had also refused to defend provisions that ban insurers from denying coverage or charging more to people with pre-existing conditions.

“But in a letter filed with the 5th U.S. Circuit Court of Appeals at New Orleans, DOJ lawyers said the appeals court should affirm a decision striking down the entire law by U.S. District Judge Reed O’Connor of Fort Worth, Texas. O’Connor had ruled in December that the elimination of a tax penalty made the entire law invalid. He did not enjoin the law, however, while his decision was appealed.

“According to CNN, the new stance ‘doubles down on stripping away all the protections that were a hallmark of the landmark heath reform law.’… The DOJ’s new stance would strike down additional provisions that allow children to have coverage on their parents’ policies until age 26 and that guarantee ‘essential health benefits’ such as mental health, maternity and drug coverage. The stance also would eliminate an expansion of Medicaid and free preventive services for people on Medicare.”

It is interesting to note how the passion with which Republican zeal governs their anti-ACA actions, knee-jerk dramatic actions not remotely well-considered, produces some unusual results. Under a most interesting example of the law of unintended consequences, the Justice Department was prosecuting a billion-dollar medical fraud case against one Philip Esformes, who ran a chain of skilled-nursing and assisted-living venues in Miami-Dade area of Florida.

“Prosecutors claim in Esformes’ indictment that the health care executive paid kickbacks to health providers ‘in exchange for medically unnecessary referrals’ to Esformes’ facilities. Esformes and co-conspirators then allegedly submitted ‘false and fraudulent claims to Medicare and Medicaid in an approximate amount of $1 billion for services that were medically unnecessary, never provided, and procured through the payment of kickbacks and bribes.’ All of Esformes’ co-conspirators plead guilty, according to the Miami Herald.

“On Wednesday [3/27], Esformes’ lawyers filed a motion in a federal court in Florida arguing that the case against their client must be dismissed — effectively ruining three years of work by prosecutors — because ‘the Justice Department has admitted that the health care offenses at issue in this trial are unconstitutional.’ Alternatively, Esformes’ legal team suggests that the judge should declare a mistrial.

“The problem arises because O’Connor did not simply strike down the core provisions of the Affordable Care Act. He declared that every single provision of the law is invalid, including relatively minor provisions amending the statutes governing Medicare fraud and kickbacks paid to health providers. Though Esformes alleged actions may also be illegal under the unamended versions of those statutes, Esformes was charged under the amended versions.” ThinkProgress.org, March 28^th. Hmmm… to win that motion, the DoJ prosecutors would have to disavow their own boss’ claims filed with the 5^th Circuit noted above.

The irony of all this is further embodied in Republican President Richard M. Nixon’s message to Congress on February 4, 1974, which reads in part: “In the last quarter century, we have made remarkable progress toward that goal [greater equality for all Americans], opening the doors to millions of our fellow countrymen who were seeking equal opportunities in education, jobs and voting… Now it is time that we move forward again in still another critical area: health care.

“Without adequate health care, no one can make full use of his or her talents and opportunities. It is thus just as important that economic, racial and social barriers not stand in the way of good health care as it is to eliminate those barriers to a good education and a good job.

“Three years ago, I proposed a major health insurance program to the Congress, seeking to guarantee adequate financing of health care on a nationwide basis. That proposal generated widespread discussion and useful debate. But no legislation reached my desk.” Obviously, no legislation made it to any president’s desk until Barrack Obama signed the ACA into law on March 23, 2010. And now, a Republican president is seeking to dismantle a law that somehow is working, albeit in need of adjustment that everyone agrees is necessary, by substituting a Swiss cheese bill that will leave Americans with much worse, mega-more-expensive healthcare system than they have now, already a system that is still the worst in the entire developed world.

              I’m Peter Dekom, and if there is a ray of hope to a seriously factionalized Democratic Party, seemingly unable to consolidate behind a unitary platform, it is that Donald Trump has made healthcare the most serious issue for the 2020 elections.