Last December a federal judge took an axe to the entire Affordable Care Act, ruling it unconstitutional, pending appeal. Now the Trump administration is going all-in on what would be a judicial death-blow to Obamacare, thrilling some conservatives but also energising Democrats.
While the law probably will be upheld in the end, the move sets up the possibility that hundreds of thousands of Americans could lose their health insurance – perhaps around the time of the 2020 presidential election – with the Trump administration part of the reason why.
That could end up as a huge gift to Democrats, who are seeking to use the healthcare issue in 2020 to unseat Donald Trump and hold on to their new majority in the House of Representatives.
Some on the left had their hopes dashed after the Mueller Russia probe ended this weekend without new criminal indictments, but the party’s top strategists – in the presidential campaigns and Congress – have always viewed bread-and-butter economic issues, including access to affordable medical treatment, as the key to their continued electoral success.
The Justice Department’s move to fully support the district-court’s decision during the appeals process marks a change from its previous position, which advocated only striking down part of the landmark healthcare reform law passed by Democrats and signed by then-President Barack Obama in 2010.
This development shouldn’t come as a huge surprise, however, as Donald Trump had celebrated the district court’s ruling when it was handed down.
“As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster!” he tweeted.
“Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. “
Three months later the president is putting his administration’s legal muscle where his mouth is.
Mr Trump has been clear about the political strategy behind these legal attempts to dismantle Obamacare. He has repeatedly called the law unconstitutional and said that if the courts kill it, the Democrats will be forced to negotiate with Republicans for new healthcare reforms more to the liking of conservatives.
It may not work out that way.
Most legal experts view the case for ruling the entire law unconstitutional as thin. The district court judge’s reasoning was based on changes made in the 2017 tax reform law that set the penalty for Americans who don’t have health insurance to zero.
The US Supreme Court had previously upheld the penalty, which was designed to avoid free-riding on the US healthcare system, as a constitutional exercise of the federal government’s power to tax. In December the district court judge decided a zero-dollar penalty was no longer a tax and hence undermined the constitutionality of the entire law.
It will be months before the appeals court considering the case renders its opinion. Depending on the outcome, the Supreme Court could eventually step in and offer its final judgement – potentially stretching the legal proceedings years into the future.
In the meantime Democrats will try to paint the administration – and Mr Trump – as being in favour of abandoning reforms that have expanded the rolls of those with health insurance and guaranteed that any pre-existing conditions are covered when Americans switch or lose their insurer.
Healthcare was the top issue in last year’s mid-term elections, which swept Democrats to power in the House of Representatives. It’s already a topic of intense interest for Democratic primary voters, as presidential hopefuls pitch ways to expand healthcare coverage. Many are advocating for the government to supplant private insurers with “universal” healthcare system.
Later this week, House Democrats will introduce new healthcare reform package designed to expand on the existing Obamacare reforms.
It’s part of their plan to move the spotlight away from the recently concluded Mueller investigation into Russia and set out a legislative record they can run on in 2020. Reports have indicated that Mr Trump also has interest in legislation targeting high prescription drug prices, with his eyes on a re-election as well.
“The Republican Party will soon be known as the party of healthcare,” the president said at the US Capitol on Tuesday.
While this case won’t be resolved anytime soon, the Trump administration’s decision to advocate for the end of the current system gives 2020 candidates an opportunity to hammer Republicans for being against the improvements Obamacare made to the US healthcare system without a way of ensuring that whatever comes next will be better.