The Trump administration is taking major political heat for opposing Obamacare in a high-stakes legal challenge, which a federal appeals court could rule on any day now.
But that wasn’t always the plan.
It turns out the administration originally intended to embrace all of the Affordable Care Act — including its protections for patients with preexisting conditions — until an influential trio of conservative advisers convinced President Trump earlier this year to do exactly the opposite. The reversal of course has not previously been reported and sheds new light on how the Trump administration has struggled to uphold and message its health-care plans following Congress’s failure to repeal and replace Obamacare in summer 2017. It also suggests at least some Republicans close to Trump are concerned about the potential political backlash and likely chaos if the court rules to strike down the ACA.
Here’s the sequence of events: Last December, a district judge upheld a challenge from nearly two dozen GOP-led states saying the ACA is unconstitutional. A three-judge panel at the U.S. Court of Appeals for the 5th Circuit is expected to weigh in next, in a ruling that is sure to reignite the ACA debate and that is likely to be appealed to the Supreme Court.
The White House has refused to defend the ACA in this case. But former administration officials say — and the White House has confirmed — that two options were on the table in March 2019, right before a deadline for the Justice Department to submit a brief to the appeals court stating its position in the case Texas v. Azar.
The administration’s choices: side with Texas and other Republican-led states contending the entire ACA is unconstitutional and must be struck down, or with California and other Democratic-led states defending the ACA.
“Folks thought the current posture in court wasn’t the best posture,” a senior administration official told me. “The question was then put to the president: Do you want to side with Texas or California? It’s pretty simple to see where he’d come down on that.”
So in a legal filing on March 25, three Justice Department attorneys argued the entire ACA should be invalidated. They said the government would file a brief supporting the Texas-led coalition pursuing the law’s complete nullification.
Up until then, the administration had taken a middle-of-the-road position on the lawsuit. It only partially agreed with the Republican-led states. In a legal brief filed in June 2018, the Justice Department argued there were grounds only to strike down the law’s popular consumer protections, including those for people with preexisting conditions. But it also contended that the rest of the law should stand.
Democrats seized upon that stance, casting the administration as hypocritical for claiming to support preexisting condition protections while simultaneously refusing to defend that part of the ACA. And the attacks worked out well for them: They gained the House majority and kept Republicans on the defensive on health care through the 2018 midterm elections.
The tricky political optics led to a deep divide within the administration. Officials at the Department of Health and Human Services, including Centers for Medicare and Medicaid Services Administrator Seema Verma, wanted the Justice Department to revise its position to support the entire ACA, said former and current administration officials.
But several White House advisers wanted Trump to swing in the opposite direction and side entirely with the red states. Former and current administration officials said that perspective was pushed primarily by Russ Vought, deputy director of the Office of Management and Budget, and Joe Grogan, head of the Domestic Policy Council, at the behest of OMB Director Mick Mulvaney.
“Grogan did that at Mulvaney’s urging,” a former HHS official told my Washington Post colleague Yasmeen Abutaleb.
The former official recalled that when the news reached HHS that the decision had been made to abandon all support for the ACA, appointees there “were royally pissed.”
HHS Secretary Alex Azar and Verma — who are much more well-versed in the ACA — worried about the terrible political optics and potential consequences of opposing the law. But Vought, Grogan and Mulvaney were more concerned about appearing to be out of sync with the Republican-led states challenging it.
It all came to a head in March, on a week that Azar was on vacation, another former administration official told me. Partially because Azar wasn’t there to make his case, the Mulvaney/Grogan/Vought camp carried the day and persuaded Trump to side with them.
Let’s rewind for just a minute. This whole conundrum arose from a decision by Texas to try to unwind the ACA, after Congress tried but failed to repeal the law so reviled by conservatives. Texas filed a lawsuit in February 2018 arguing the entire law is unconstitutional because its penalty for lacking health coverage (the provision the Supreme Court used in 2012 to uphold it) is gone.
It’s the job of the federal government to defend laws passed by Congress, so it was unusual when Justice agreed to defend only part of the ACA. As a result, California Attorney General Xavier Becerra (D) stepped in.
However the appeals court rules, both sides are expected to appeal the decision to the Supreme Court, potentially setting it up for a hearing next spring or fall.
But this all could have played out very differently.