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We start from the premise that it is never a good time to take health care away from people. Working to do so at a time when millions of Americans are already at risk of losing their health care because of the coronavirus pandemic and the economic downturn that has accompanied it is as cruel as it is nonsensical.
But that’s what the Trump administration is arguing for.
The administration filed a brief in late June urging the U.S. Supreme Court to invalidate the entire Affordable Care Act. In the brief, Solicitor General Noel J. Francisco argued that the entire act should be struck down because the administration believes the individual mandate, a cornerstone of the law, is unconstitutional.
This mirrors a 2018 federal court ruling in Texas that found the law unconstitutional because Congress had essentially removed the mandate when it eliminated penalties for not complying with the mandate in 2017.
The Supreme Court ruled in 2012 that the individual mandate was a constitutional use of Congress’s power to tax. But without the penalty for not having insurance, there is no longer a federal revenue component of the law.
Two years ago, legal scholars had said that the Texas federal court ruling didn’t pose much danger because Congress had been clear in its intent to eliminate only the tax penalty for not having health insurance, while it left the remainder of the ACA intact.
That logic should hold true today. Numerous efforts to repeal and replace the act failed in Congress, even when the U.S. House, Senate and presidency were all in Republican hands.
Still, the Trump administration has ratcheted up its argument that the landmark health law is invalid and should be negated, with nothing concrete to replace it.
This is especially dangerous thinking when millions of Americans are out of work and at risk of losing their health insurance, a problem that is likely to persist as the coronavirus worsens in much of the U.S., potentially stalling an economic recovery.
Because of record unemployment caused by the pandemic and economic downturn, more than 27 million Americans are at risk of losing their health insurance, according to a May analysis by the Kaiser Family Foundation. About a third are eligible for insurance through the marketplaces established by the Affordable Care Act.
In a statement to The Washington Post, White House spokesperson Judd Deere said, “A global pandemic does not change what Americans know: Obamacare has been an unlawful failure and further illustrates the need to focus on patient care.”
“The American people deserve for Congress to work on a bipartisan basis with the President to provide quality, affordable care,” he added.
This is backward and inaccurate.
For one, the ACA, also known as Obamacare, is not a failure. It has extended health insurance to 20 million Americans who didn’t have it before the law was enacted in 2010. The expansion of Medicaid allowed under the act, which most states have enacted, ensured that millions of low-income Americans can get health care. This improves their well being and lowers costs for other Americans.
In addition, the patient protections in the act, such as required coverage for pre-existing conditions, have improved the breadth and quality of care for many Americans.
For these reasons, the Affordable Care Act remains popular. It is supported by the majority of Americans, albeit a slim one, despite years of rhetoric about how terrible the law is.
Finally, if the Trump administration is serious about a better plan, it is well past time for them to present it. Arguing for the death of the Affordable Care Act, with no alternative to ensure Americans have access to affordable and comprehensive health care, is heartless.
The Supreme Court is unlikely to rule in the case until next year.
The administration’s court filing, however, is a startling look into its priorities at a time when Americans need health insurance and health care more than ever.