Democratic senators call out Trump administration’s plan to dismantle ACA

By | July 9, 2019

Dive Brief:

  • Democrats in Congress are ramping up their warnings about what they call catastrophic consequences if a ruling upending the Affordable Care Act stands, ahead of Tuesday’s scheduled oral argument in the U.S. Court of Appeals for the Fifth Circuit over the law’s constitutionality.
  • In a call with reporters on Monday, Senate Minority Leader Chuck Schumer and Sens. Ron Wyden, D-Oregon, and Chris Murphy, D-Conn., warned that 130 million Americans with pre-existing conditions could lose their coverage if the Republican state plaintiffs succeed in their lawsuit against the ACA. “If this lawsuit is successful, Americans will suffer through a humanitarian catastrophe,” Murphy said.
  • The Fifth Circuit will hear arguments from the Trump administration and state Republicans seeking to effectively kill the coverage elements of the law and Democratic lawmakers trying to save it. The court is expected to decide the case as early as this fall.

Dive Insight:

The Obama-era law has survived years of Republicans attempts to blow it up, from a Supreme Court case to congressional attempts to repeal it.  For years, Democrats struggled to defend the law, but their efforts got a boost in 2018 when voters began to appreciate the law, with approval ratings rising and the party’s embrace of the ACA helping in the midterm elections.

Democrats are highlighting one of the law’s most popular elements. If the Trump administration and Congressional Republicans wind up dismantling the ACA — that could mean the end of protections for those with pre-existing conditions — with no plan in place to deal with the fallout.

“Republicans are the party of no plan and no health care,” Schumer said. “After nearly 10 years, the amazing health care plan the Republicans say they have is nowhere to be seen.”

The call came a day before the parties — including Texas, joined by 17 other states, the federal government, a coalition of Democratic attorneys general and the U.S. House of Representatives — are set to present their arguments in the case.

Texas, joined by 17 other states, sued the federal government over the ACA in 2018. Trial judge Reed O’Connor of the U.S. District Court for the Northern District of Texas invalidated the entire law late last year. The Democratic-led states and the majority Democrat House intervened to defend the ACA after the federal government dropped its defense of the law in March, saying it largely agreed with the trial court’s decision.

While the plaintiff states have consistently taken the position that the entire ACA is invalid, the Trump administration’s position has shifted.

In its brief filed with the appeals court in recent days, the Justice Department appears to take the position O’Connor’s invalidation of the law applies only to the plaintiff (Republican) states that sued to invalidate the law, but not in the states where the mostly Democratic states intervened to defend the law.

The intervening states, the Justice Department said, haven’t shown the trial court’s decision injures them. “That judgment’s invalidation of the ACA, properly construed in light of bedrock legal principles, does not extend beyond the plaintiff states to the intervenor states,” DOJ’s brief said. 

That’s a new argument, one legal scholar said. 

The Texas judge ruling striking down the law “did not, however, cabin his decision to only the plaintiff states — he declared the ACA itself to be invalid, which would apply to all states,” wrote Georgetown University adjunct professor Katie Keith in Health Affairs.

In addition, the administration is now saying the trial court decision shouldn’t be affirmed without qualification, calling the ruling “overbroad.”

“I have no idea what the Trump administration is doing,” Murphy said. “They have changed their position several times and now they appear to be changing again.”

Arguing the trial court’s decision is limited in geographic scope is a new twist, Murphy said. “The administration’s position is ping-ponging by the hour,” Murphy said. “This administration and its legal theory is out of control.”

Roughly 20 million Americans could lose their coverage if the plaintiff states prevail in their suit. 

​Meanwhile, the Fifth Circuit could rule on the appeal as early as this fall, but the case is likely to ultimately end up in front of the U.S. Supreme Court.

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