Senate/Governors: It’s Groundhog Day for the ACA

If the issue of health care were a movie, congressional Republicans would be watching The Shining, while their Democratic counterparts would be viewing Back to the Future. Voters, though, are being forced to sit through the sixth consecutive showing of Groundhog Day.

This week’s announcement that the U.S. Department of Justice would support a district court’s ruling that the Affordable Care Act (a.k.a. Obamacare) is unconstitutional. The case is now before the 5th Circuit court and many legal experts believe that the lower court’s ruling will be upheld. Presumably, the case would then move to the U.S. Supreme Court. President Trump is fully supportive of DoJ’s action because it may well give him what Congress hasn’t; a full repeal of the ACA. But, in attempting to get what he wants, the President has left congressional Republicans and some Republican Governors in an untenable position going into the 2020 election cycle.

Democrats paid the price for their support of the Affordable Care Act in the 2010, 2012 and 2014 elections. Over that period, Democrats lost their majorities in the U.S. House and Senate, as well as a handful of governorships. The tables started to turn in 2016, and by 2018, Democrats were on the offensive, attacking Republicans for supporting the elimination of the provision that protects consumers with pre-existing conditions. As a result, health care played a significant role in Republicans’ loss of their majority in the House. Republicans hoped to go back on the offensive on health care this cycle, but Trump’s desire to eliminate the ACA will make that very difficult, if not impossible.

Practically speaking, the Supreme Court may not even hear the case before the 2020 election, and even if they do and lower court rulings are upheld, vast majority of consumers wouldn’t feel the impact immediately. But, in siding with the lower court’s ruling that the ACA is unconstitutional, Trump and the Department of Justice have handed Democrats a very potent weapon with which to pummel Republicans in 2020, and puts health care on centerstage for the sixth consecutive cycle. The mere prospect that the ACA could get overturned gives Democrats plenty of messages that will undoubtedly make consumers very anxious about the future of their health insurance.

Of course, elimination of the ACA impacts more consumers than just those 20 million Americans covered by health care exchanges. About 155 million people under the age of 65 get health care insurance through their employers. If the courts overturn ACA, it means that insurance companies no longer have to provide coverage for those with pre-existing conditions or dependents up to the age of 26. The mandated primary care services (i.e., screenings, preventive care) would disappear for adults and children, as would the caps on out-of-pocket costs.

More important, if the ACA is overturned, the insurance market wouldn't simply revert to what it was before 2010 when Congress passed the legislation. Take pre-existing conditions. People with pre-existing conditions who couldn’t get affordable health insurance before ACA have it now, and would certainly be in danger of losing it or it becoming too expensive in the absence of the ACA. But, so will people who developed conditions after the ACA went into effect. These are just a few examples of what is likely to happen if the ACA is eliminated without a plan to replace it, but there are hundreds of provisions that will impact millions of consumers.

The ACA is in its fifth year of implementation, and most consumers have grown accustomed to it and many like it. As anyone who has ever served In office will tell you, there is nothing more difficult or politically dangerous than taking a benefit away from a voter. As for voters, there is nothing more motivating than the threat of losing a benefit.

Democrats were quick to celebrate the gift Trump handed them. Senate Democrats started pivoting their messaging to health care while Democratic leaders in the House introduced a health care reform bill. Rhode Island Gov. Gina Raimondo, chair of the Democratic Governors Association, hosted a call during which five Governors touted the success of the ACA in their states and outlined the dire health and economic consequences that overturning the ACA would produce.

Across the aisle, Congressional Republicans were blindsided by the Administration’s decision, which the leadership in both chambers thinks is a major mistake. House Minority Leader Kevin McCarthy told Trump that he’s against the decision to pursue ACA in the courts. Senate Republicans didn’t say much publicly when the news broke, with the exception of Sen. Susan Collins of Maine who made it very clear that she believes that the decision is ill-conceived. Privately, Senate Republicans and strategists expressed their displeasure. They weren’t swayed by Trump’s pep talk at a closed-door lunch on Tuesday when he said he wanted Republicans to be the party of health care. One Republican Senate strategist said of Trump’s message, “The President is more effective in arguing for his own defeat than any of the Democratic candidates could ever hope to be.”

What Republicans know, and Trump fails to understand, is that it’s political malpractice to pursue eliminating the ACA without having a plan to replace it. If 2017 taught Republicans anything, it’s that gaining any kind of consensus on health care reform even within their own party is nearly impossible. There is no Republican proposal on the table now, and Senate Majority Leader Mitch McConnell made it clear yesterday that any plan is going to have to come from the White House. While this may be an attempt to make Trump own his decision on the ACA, it doesn’t take congressional Republicans out of the line of fire.

In fact, it creates another headache for Republicans on the ballot in 2020. If they support Trump’s move on health care, they risk alienating general election voters. If they vocally oppose Trump, they risk the ire of Trump’s base, and angering the base will almost certainly produce primary challenges.

Republicans have been planning to go after Democrats for their Medicare- for-all proposals, bringing back the specter of the kind of government-run, single-payer plan that voters have rejected in the past. The odds are that they will still pursue this strategy on the campaign trail, but they are now well aware that they are as vulnerable as ever to Democratic attacks on health care. And Democrats are in a much better position to raise voters’ anxiety levels than Republicans are.

Moreover, congressional Republicans know all too well that regardless of what happens in the courts, Trump has squeezed the toothpaste out of the tube, and they don’t have any way to put it back.