Searching for a Pulse on the Affordable Care Act

Searching for a Pulse on the Affordable Care Act

By Daniel Malloy and Sean Culligan


Because pre-existing conditions are on the line once again.

By Daniel Malloy and Sean Culligan

Like an ’80s slasher movie killer, the Affordable Care Act keeps springing back from near death. The landmark reshaping of America’s health system was considered kaput more than once before it became law, most notably when Republican Sen. Scott Brown won a special election in Massachusetts as the “41st vote” to kill it in the Senate. Then it prevailed in the Supreme Court with the unlikely help of Chief Justice John Roberts, and Americans managed to sign up for the coverage, despite Obamacare’s disastrous web launch. Heck, it’s even survived the first 17 months of Donald Trump’s all-Republican Washington, thanks to the down-turned thumb of Sen. John McCain.

And now … another sequel.

Trump’s most significant policy move this past week came with a Thursday-evening court filing and letter from Attorney General Jeff Sessions to Congress. Sessions, with Trump’s blessing, said the Department of Justice will no longer defend the law’s individual mandate in court. As it stands, the requirement that everyone buy health insurance is not so much dead as in a Jason Voorhees–style coma: The new tax law made the penalty $0. Sessions’ important twist was declaring that the mandate is inextricably linked to the ACA’s requirements that insurers cover people with pre-existing medical conditions and not jack up their rates. In other words, Trump is coming after the popular protections with a proverbial machete — protections even his fan base support.


Trump’s mission to wipe President Barack Obama’s achievements away one by one is made easier by the fact that many of those achievements (the Paris climate accords, Iran deal, protections for immigrants) were completed by Obama’s pen alone. But Obamacare, passed into law by Congress, has been harder to kill. Republican opposition has only grown since the sweltering tea party summer of 2009, pushing Trump to press on. Only now he’s pushing into politically dangerous territory.

The picture is looking marginally better for his party in the midterms, when voters are asked whether they prefer a Democrat or a Republican in Congress. While still friendly to Democrats, these numbers had looked bluer in the thick of the debate about repealing Obamacare.

But Trump’s latest move puts both parties on ground Dems are dying to fight on. Within hours of Sessions’ attack on the law, congressional candidate Andy Kim — running an underdog race in the New Jersey suburbs — dashed off a press release urging the GOP incumbent, Tom MacArthur, to demand Trump defend pre-existing condition protections.

This is no pardon … so it’s not up to Trump alone. California and 16 other Democrat-led states are defending the law in a court challenge to its constitutionality that could go to the Supremes once again. Trump has already worked to undermine the law by not encouraging sign-ups and eliminating government payments to insurers that were designed to help reduce costs for low-income people. Obamacare’s basic cost-sharing bargain relies on universal insurance coverage to help fund care for the sick, so it’s not unreasonable to link the loss of the mandate to a loss of pre-existing condition guarantees. But pre-existing conditions are so widespread and the guarantees so popular that many Republicans are wary of scrapping them.

Republicans face the same problem on health care that Democrats do on immigration: They’re able to articulate what they’re against, but not really what they’re for. Campaigns are already dueling over whether deductibles or border crossings will dominate voters’ minds by the time Halloween arrives again.