The Trump administration spent much of its first two years in office trying to repeal the Affordable Care Act, the health care overhaul passed in 2010 often called “Obamacare.” The legislative effort collapsed in mid-2017 when Sen. John McCain voted no on a Senate version of what’s known as “skinny repeal”- a move that was known to drive the president to angry Twitter rants even months after McCain’s death.
Now, the administration has announced that it wants to have Obamacare tossed by the courts. According to CNN, the Justice Department has filed a document stating that it agrees with a recent lower court ruling that the entirety of the Affordable Care Act was unconstitutional. This represents a reversal from the view of the Justice Department under former Attorney General Jeff Sessions, in which the DOJ argued that some provisions of the law were unconstitutional, but not the entirety of it.
The Patient Protection and Affordable Care Act, passed in 2010, is the culmination of decades of failed efforts by Democratic administrations to overhaul health care. The law was built around a few principles. One was the individual mandate, which required everyone to either obtain health insurance or pay a penalty for not doing so. Meanwhile, insurance companies were no longer allowed to reject patients with pre-existing conditions, and exchanges were set up in states where Americans could choose their favorite plans.
While the implementation was botched, including website Healthcare.gov that initially didn’t work, the law succeeded in expanding the number of people who had health insurance. The Republicans in Congress, meanwhile, spent the remainder of the Obama administration seeking to repeal the law, while also fighting it in the courts. In June 2012, in National Federation of Independent Business v. Sebelius, the U.S. Supreme Court upheld the constitutionality of Obamacare.
Donald Trump, throughout the 2016 presidential campaign, called for repealing Obamacare and replacing it with “something wonderful,” which would cover more people but cost less. However, even with a Republican majority in both houses of Congress for two years, Trump failed to pass an Obamacare repeal (or a repeal-and-replace), although they were able to include a repeal of the individual mandate in the tax reform package in late 2017.
But now, it appears, the administration has returned to the strategy of using the courts to get Obamacare tossed. The administration’s backing of that strategy could mean a return of the health care issue to the U.S. Supreme Court.
The makeup of the court has changed since the 2012 decision, with Trump appointees Neil Gorsuch and Brett Kavanaugh replacing the late Antonin Scalia and the retired Anthony Kennedy. While Kennedy and Scalia both voted for repeal in the Sebelius case, it’s unclear if Chief Justice John Roberts, who surprisingly voted to uphold the Affordable Care Act, would do so again.
Trump is giving Democrats a gift with this new court filing on Obamacare.— Sahil Kapur (@sahilkapur) March 26, 2019
Health care was the #1 issue for 2018 voters and those who cited it preferred Dem candidates over Republicans by a margin of 75-23%.https://t.co/TMDK7nJmur
If the courts ultimately toss Obamacare, it would have major political implications, just in time for the 2020 presidential election. The striking down of that law, with no replacement in place, would have the potential to suddenly strip a huge number of people of their health coverage, while also tasking a divided Congress with crafting a replacement with which both parties could live.
If the court, during its 2020 term, were to strike down Obamacare, it could leave the Trump administration in a position where they are blamed for many Americans losing their health care. Meanwhile, several of the Democratic presidential candidates are supportive of Medicare For All, which would go even further than the Affordable Care Act did.