While the frenzy in Washington, D.C., continued over Attorney General William P. Barr’s summary of special council Robert S. Mueller III’s findings — the calls for “reckoning” and “payback,” the new, dueling probes pushed by House Democrats and Senate Republicans — the Trump administration quietly did something to remind us why Democrats are so eager to get him out of office.
In a letter to the 5th Circuit Court of Appeals, three Justice Department lawyers said the administration would not try to overturn a bizarre (my word, not theirs) lower court ruling last year that declared the entire Affordable Care Act unconstitutional. Instead, they wrote, “the Department of Justice has determined that the district court’s judgment should be affirmed” — in its entirety.
Although it’s part of the DOJ’s job description to defend duly enacted federal laws, it’s not unheard of for a new administration not to go to bat for a law championed by a previous one. See, e.g., the Obama administration’s approach to the Defense of Marriage Act, which it initially defended and then opposed in court.
And Trump has opposed the ACA since he took office, so it’s unsurprising that the Justice Department would embrace a district court judge’s ruling that declared the law unconstitutional, regardless of how wacky the legal reasoning was. And wacky is the word for District Judge Reed O’Connor’s ruling, which held that Congress invalidated the entire ACA by removing a single piece — the financial penalty for adult Americans who fail to carry health insurance — as part of the 2017 GOP tax bill.
But here’s the thing that drives Democrats nuts. Most presidents push Congress or use their executive power to bring changes to policies they think aren’t working. Trump just tries to break things, assuming that it will spur action and give him more negotiating leverage.
O’Connor’s ruling, which is on hold pending the appeal, would dramatically disrupt how tens of millions of Americans obtain health care. By the stroke of a pen, it would eliminate the Medicaid eligibility of about 15 million low-income Americans who signed up courtesy of the ACA. It would also throw into turmoil the insurance market that serves roughly 20 million people not covered by an employer’s health insurance plan, eliminating the federal premium subsidies and most of the state exchanges where people shopped for coverage. Beyond that, it would end a host of efforts launched by the ACA to improve quality and cut costs in Medicare and the broader health care system.
That’s the policy equivalent of sinking a cruise ship before the passengers have the chance to get on lifeboats. It’s why Congress never went through with the GOP’s half-baked repeal-and-replace proposals for the ACA — the collateral damage would have been too great.
Yet on issue after issue, whether it be the Deferred Action for Childhood Arrivals program or the North American Free Trade Agreement or trade with China or the Israel-Palestinian conflict or Iran’s nuclear ambitions and on and on, Trump’s modus operandi has been to flail away at policies he doesn’t like even though he may have no replacement ready. The harms caused in the aftermath — to “Dreamers” trapped in jobless limbo, say, or farmers stuck with soybean harvests they can’t sell — are just the cost of doing business.
I understand the logic here. It’s extremely hard to get anything through a polarized and risk-averse Congress. Lawmakers are like high school students, they have trouble accomplishing anything without a deadline. And in the case of the ACA, there’s no question that the way the law spread the cost of insuring older, sicker people led some younger, healthier Americans to be hit with sharp premium increases. Democrats were late to acknowledge that problem.
Yet contrast Trump’s let-the-chips-fall-where-they-may approach with the steps House Democrats are expected to propose to shore up the ACA and reduce premiums. One of the two sides seems to care about the consequences of its policy positions.
It’s worth remembering that the DOJ had initially urged O’Connor to throw out just some of the law’s insurance reforms, such as the protections for people with preexisting conditions. That was harsh enough, though, and Democrats used the preexisting-condition issue to beat Republicans like a drum in the 2018 congressional campaigns. If I were a Republican member of Congress running for re-election in 2020, I would hope that the 5th Circuit overturns O’Connor’s ruling and does it soon, before the president can give Democrats any more ammunition.