Defend the entire ACA or strike the whole thing down? For Trump it was apparently a flip of the coin.


Long-time readers may remember that back in June 2018, the Trump Administration's Justice Dept. threw all precedence, decency and logic out the window by not only refusing to defend against the idiotic "Texas vs. Azar" lawsuit (aka #TexasFoldEm) brought by 20 Republican state Attorneys General...but went even further by actually agreeing with the plaintiffs that the Patient Protection & Affordable Care Act--which is, remember, the federal law of the land which the DoJ is supposed to defend--is unconstitutional.

At the time, there was one strange thing which was buried within the ugly implications of such a complete abdictation of duty by then-U.S. Attorney General Jeff Sessions: While the Trump DoJ did side with the plaintiffs on the case, they split from the plaintiffs as to what they thought the actual "solution" to the "problem" should be.

While the plaintiffs want the entire ACA struck down "root and branch", at the time, the DoJ only wanted the ACA's patient protections struck down...basically, they wanted to kill the "PP" leaving only the "ACA" parts.

This would itself have some pretty horrific consequences for people with pre-existing conditions (as well as becoming a logistical nightmare, since there'd no longer be any consistent basis on which to figure out what the "benchmark Silver" healthcare policy premium actually is), but it wouldn't be nearly as bad as the entire law being eliminated, since provisions like premium subsidies, Medicaid expansion, the closure of the Medicare Part D donut hole and so forth would remain in place.

However, considering that the GOP had just spent nearly a decade in general and the better part of 2017 specifically desperately trying to repeal, strike down, delete, eliminate, purge, destroy, burn, vaporize and otherwise kill the ACA and failing to do so...and considering that Donald Trump had become particularly obsessed with trying to wipe out his hated predecessor's most visible policy accomplishment out of pure struck me as very strange that his Justice Department would take such a half measure. They were already refusing to defend the law, and were even agreeing with the plaintiffs, so why not go the rest of the way? Odd.

Well, that head-scratcher became moot 9 months later, when this past March, the DoJ (under brand-new Attorney General William "Gimme a Portion of that Extortion" Barr) announced, seemingly out of the blue, that they had changed their stance and were now indeed calling for the entire ACA to be struck down:

The Trump Administration Now Thinks the Entire ACA Should Fall

In a stunning, two-sentence letter submitted to the Fifth Circuit today, the Justice Department announced that it now thinks the entire Affordable Care Act should be enjoined. That’s an even more extreme position than the one it advanced at the district court in Texas v. Azar, when it argued that the court should “only” zero out the protections for people with preexisting conditions.

...Even apart from that, the sheer reckless irresponsibility is hard to overstate. The notion that you could gut the entire ACA and not wreak havoc on the lives of millions of people is insane. The Act is now part of the plumbing of the health-care system. Which means the Trump administration has now committed itself to a legal position that would inflict untold damage on the American public.

And for what? Every reputable commentator — on both the left and the right — thinks that Judge O’Connor’s decision invalidating the entire ACA is a joke. To my knowledge, not one has defended it. This is not a “reasonable minds can differ” sort of case. It is insanity in print.

While I never understood the original position, I mostly shrugged it off as an anomaly. Besides, it didn't really matter anymore...what mattered now (and still does today) is that the DoJ is siding with the plaintiffs in a case which--if they get what they want--will strip away healthcare coverage from around 20 million people and cause massive havoc for tens of millions more.

It turns out, however, that as arbitrary as the original stance may seem to have been, the reversal was apparently even more random. Via Paige Cunningham at the Washington Post:

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.

The jaw-dropping callousness by the Trump Administration shouldn't surprise anyone at this point, but as a healthcare wonk, with tens of millions of Americans facing possible bankruptcy, agony or even death based on the whims of the Extorter in Chief, I still find it appalling.

In fact, apparently it was such a random decision on Trump's part that...

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.

I'm no fan of Azar or Verma, but they're both at least reasonably competent and seem to have at least a basic understanding of the consequences of this decision. Frankly, in some ways this actually makes Verma's recent blog post trashing the ACA while simultaneously trying to claim credit for "saving" it all the more revolting.