Opinion: Amid pandemic and recession, the Trump administration attacks 20 million Americans’ health coverage

The COVID-19 pandemic caused a huge spike in layoffs, leaving tens of millions of Americans without the employer-sponsored health insurance that had protected their families. But the 2010 Affordable Care Act offered a safety net for them — laid-off workers can sign up for replacement coverage for themselves and their families through their state insurance exchanges. And according to the Kaiser Family Foundation’s estimates, nearly 80% of those who’d lost their coverage at work in the pandemic’s first two months were eligible for federal subsidies that lowered the cost of those new policies.

Yet on Thursday, the Trump administration urged the Supreme Court to throw out the ACA because two self-employed Texans assert that the law injures them. In fact, the administration’s brief makes a wholly specious argument that the sections of the law it connects to the plaintiff’s injuries cannot be separated from the portions of the law that extend Medicaid to more poor Americans, improve the quality of care, cut prescription drug costs for the elderly, explore ways to slow the growth of healthcare costs, increase the supply of doctors and nurses, let young adults stay on their parents’ insurance policies, and make it cheaper for everyone to get preventive health services.

Not to put too fine a point on it, but in the middle of a pandemic the administration is demanding the elimination of a law that has extended coverage to roughly 20 million Americans, and that protects some 50 million Americans with preexisting conditions from being gouged or dropped by their insurers.

Didn’t President Trump take the hint from the 2018 election, when Democrats retook the House of Representatives by running against the GOP’s efforts to repeal the ACA? The closer Republicans came to wiping out the law and its extremely popular safeguards for people with preexisting conditions, the more the public’s support for the ACA grew.

The notion that Obamacare does more harm than good has been central to the Republican argument against the law since the day it went into effect. And there’s no question that some people, like the two individual plaintiffs in California et al. vs. Texas et al., have been forced to pay more for coverage, even as millions of others benefited from the new federal subsidies. That’s because the law sought to rein in “junk” policies that didn’t cover many important forms of care and to spread individuals’ risks and costs more broadly. As a consequence, the comprehensive policies offered on the exchanges are costlier than the more limited ones that had typified the market for non-group coverage. And under the law’s individual mandate, every adult American was required to obtain healthcare coverage or pay a tax penalty (unless they qualify for an exemption, such as the one for financial hardship).

The case before the Supreme Court uses that claim of injury to tee up a too clever by half attempt to kill the entire ACA, based on Congress’ decision to excise one small but important part of the law. Unable to repeal the entire act after they took complete control of Congress in 2017, Republicans settled for eliminating the widely disliked tax penalty for people who did not comply with the individual mandate, which remains on the books.

That’s a problem, the plaintiffs in California vs. Texas argue, because the Supreme Court upheld the individual mandate in 2014 only as an exercise of Congress’ power to levy taxes. Removing the tax rendered the mandate unconstitutional, which upends the insurance reforms that are the heart and soul of the law. And if those insurance reforms are off the table, Congress wouldn’t have enacted any of the other provisions of the ACA. Or so the plaintiffs and the Trump administration argue.

The administration is right about one thing here: Congress (and many analysts) viewed the individual mandate as an important stabilizing force for insurers once they were required to take all comers and ignore preexisting conditions. But it was hardly the only stabilizing force; as we’ve seen in the two years since the tax penalty was repealed, average insurance premiums have declined in the state exchanges. The facts on the ground are the strongest argument against the administration’s case.

Oddly, the Trump brief argues most forcefully against the insurance reforms designed to protect people with preexisting conditions — the people Trump insists he cares about, despite Republicans’ multiple efforts to expose them to higher costs. Those provisions are the reason congressional Republicans ultimately abandoned their effort to repeal the ACA, which is why it makes no sense to argue, as the Trump brief does, that Congress wouldn’t want those protections to survive if the individual mandate dies. There’s no need for the court to guess lawmakers’ intent on that issue.

This case never should have gotten this far; it’s absurd to contend that anyone is injured by a mandate that can be ignored without penalty. Yes, other aspects of the law created winners and losers at the micro level, as just about every law does. But if Republicans hadn’t been so hellbent on repealing the ACA, Congress could have moved sooner to help people like the two plaintiffs from Texas whose costs have gone up. House Democrats are poised to pass a bill to do just that; the Senate will almost certainly ignore it.

The Supreme Court is expected to hear oral arguments in California vs. Texas this fall, potentially before the election in November. Voters need to keep in mind what the administration’s lawyers say in this case whenever Trump tells them how much he cares about their healthcare coverage.