The war against Obamacare is still raging after 10 years and one pandemic
It’s been 10 years, and Republicans still can’t quit Obamacare.
As coronavirus cases mount and as state and local governments brace for more COVID fallout, the battle over President Obama’s signature achievement continues to rage — and the health benefits of more than 20 million Americans hang in the balance.
The war over the Affordable Care Act has been full on since its enactment in March 2010.
Republicans who voted against it then called parts of the ACA unconstitutional, taking particular aim at the individual mandate provision, which requires people to enroll in insurance coverage or face fines. It faced challenges in the Supreme Court in 2012 and 2015, and was upheld both times. President Trump has vowed to overturn Obamacare as well, but after nearly four years in office still has relatively little to show for his efforts.
Now, as coronavirus continues to take lives, and with two months left in the White House for Trump, the fight over Obamacare is before the Supreme Court once again.
How high are the stakes?
“If they threw out the whole law, it would be unprecedented, at least in the post-Civil War period,” said Frank Thompson, an expert on the ACA and professor of public affairs at Rutgers University.
President-elect Joe Biden and others have pointed out that doing away with the law without something to replace it would amount to inflicting further catastrophe on an American public already reeling from COVID-19.
“Total chaos,” predicted Cynthia Cox, who researches Obamacare as vice president of the Kaiser Family Foundation. “If the entire ACA is overturned, we don’t just turn back the clock to before the ACA. Without any replacement plan, chaos is the only word I can come up with.”
The entire health care industry in America is now geared toward Obamacare. Undoing it suddenly and with no back-up plan would leave the industry at a complete loss on how to proceed, Cox said.
Such a scenario is still possible, but it’s beginning to look less and less likely.
Last week, two conservative Supreme Court justices, Chief Justice John Roberts and Justice Brett Kavanaugh, revealed they are unlikely to strike down the law as unconstitutional, suggesting they would be inclined to uphold most it while overturning the individual mandate — the portion of the law Republicans were so critical of at its inception.
“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place,” Kavanaugh, one of Trump’s three appointments to the court, said Tuesday.
Such pronouncements do not guarantee an outcome — the Supreme Court is likely to take months to deliberate — but supporters of the ACA view them as cause for hope.
“They pretty much said they’re sympathetic to the severability argument,” said Thompson, who, based on that, predicted the court would uphold the bulk of the law.
The problem for Trump and the 18 Republican attorneys general who took the case to the nation’s highest court is that the individual mandate was already effectively done away with under Trump’s 2017 tax plan. That package included what amounted to his administration’s Plan B on Obamacare, coming not long after he and the then GOP-controlled Congress failed to hammer out an alternative to the ACA.
A Supreme Court decision to officially strike down only the individual mandate from the ACA would still leave most of the law — and its billions of dollars in subsidies — intact.
This year, subsidies for adults eligible for Medicaid under the ACA are projected to hit $66 billion, according to the Congressional Budget Office. In 2021, that number is expected to climb to $70 billion, provided the law remains intact. According to Cox, the total annual subsidy distributed under the ACA adds up to more than $126 billion.
Trump in 2017 inaccurately said that through eliminating the individual mandate penalties, “we have essentially repealed Obamacare.”
That wasn’t true then, and it still isn’t now.
But it hasn’t stopped Trump and his allies from arguing that removing the individual mandate invalidates the entire law, a key underpinning of the current Supreme Court case.
When the fines tied to Obamacare’s enrollment requirement were eliminated in 2017 by Trump’s tax plan — the roll back went into effect in 2019 — experts predicted it would cause people’s premiums to go up substantially. But that hasn’t happened during the last two years.
“It’s barely had a measurable impact,” said Cox.
Most likely because even without a penalty, people still have an incentive to buy into cheaper health care coverage if they can afford to, she said.
Obamacare massively expanded eligibility to Medicaid and mandated that health insurance companies couldn’t deny coverage or charge patients more money based on whether they have preexisting conditions.
It also required that people sign up or face fines — the rationale being that premiums would remain lower with more people enrolled.
Despite the benefits of Obamacare, the penalties tied to not being insured have been unpopular with both Republicans and Democrats. That was not lost on Trump, who has succeeded in chipping away at pieces of Obamacare.
Obama’s administration spent substantial time, cash and energy promoting affordable coverage options. Trump largely abandoned that and cut the enrollment period, as well as funding to insurance companies that offer coverage within the ACA-spawned healthcare marketplace. Trump also enacted policies designed to draw people out of health plans that fall under the ACA.
Completely doing away with the law will not only have consequences on the millions of people left without coverage. The political fallout would likely be epic.
America without Obamacare would mean that a replacement has to be created. Democrats struggled to implement the ACA at a time when Obama occupied the White House and the party controlled both houses of Congress, with a filibuster-proof majority in the Senate.
If Republicans hold on to control of the Senate through January’s two runoff elections in Georgia, it will give them leverage in crafting a replacement to the ACA, but will also put them in the cross hairs of voters looking to blame those who created the chaos in the first place.
For his part, Biden, who was instrumental in shepherding Obamacare through Congress in 2010 when he was vice president, has vowed to expand its footprint to help those who’ve lost their jobs and health insurance because of COVID.
“Families are reeling,” he said recently. “They need a lifeline, and they need it now. They shouldn’t have to hold their breath. They shouldn’t be in that position, waiting to see if the Supreme Court is going to wrench away that peace of mind.”
