Medicine in ContextVolume 2, No. 1

Efforts to Repeal the Patient Protection and Affordable Care Act

Ross A. Frommer

Columbia University Irving Medical Center
Citation:Frommer RA. Efforts to Repeal the Patient Protection and Affordable Care Act. Col Med Rev. 2018 December 29; 2(1).

Author’s Note

I was first asked during the summer of 2017 to write a piece about the history of efforts to repeal the Patient Protection and Affordable Care Act (ACA). When I wrote the first draft of this piece that August, I thought that if I had wanted to give it a catchy title, I would name it, “Snatching Defeat from the Jaws of Victory.”1 Republicans, despite having control of both houses of Congress and the Presidency, were not able to pass a bill repealing the ACA.  Even with all the advantages they had, they kept falling short, failing at something they had been trying to do for seven years and that had been a major part of their campaign platform.

Fast forward to 2018 and I now think that perhaps a better name might be, “They Stab it with their Steely Knives but They Just Can’t Kill the Beast,”2 a perspective on which both ACA supporters and opponents might agree, even if they each have a difference beast.  Republicans have made several attempts to repeal and replace the ACA, almost all of which Democrats have been able to beat back, yet the Republicans keep coming back to try again. Even after finally making a major change to the ACA with passage of the tax bill (as will be described later in this article), the fact remains that: (a) much of the ACA is still the law of the land; and (b) Republicans are still pushing to change that.  Neither side can kill their beast.

Most of what I wrote in last August about what could happen going forward ended up being off the mark and when I sat back down again to update the article, I had to delete roughly a third of what was in the original draft.  Normally, I would have found this distressing, but if there is one thing I – and many, many others – have learned over the last two years, it is that much of what we thought we knew about government, politics, and campaigns has ended up being wrong.  I have no doubt that the same may apply to much of what I write this time.

One further note, this article is meant to be a review of efforts to repeal the ACA, focusing on Congressional proceedings, legal challenges, and even a little good old-fashioned politics.  It is not meant to be a substantive review of the ACA itself.  I have no doubt that such articles already exist and were written by authors far more knowledgeable than I am.  As such, this article assumes that the reader has at least some basic understanding of the overall ACA and some of its key provisions.  If there is anything that needs further clarification, please feel free to contact me.

Now to the article itself – enjoy.  And if anything I say turns out to be wrong, well, just remember I predicted that could happen.  That may be the only thing I get right.

 


 

Since the ACA was passed in 2010, Republicans have been trying desperately to repeal it. Yet despite an eight-year plus effort on multiple fronts to accomplish this, it is still the law of the land, with some modifications made largely over the past few years.

The ink was barely dry on President Barack Obama’s signature when Representative Paul Broun (R-GA) introduced a bill that would repeal the newly enacted law.  This became one of the major agenda items for the Tea Party movement.

The 2010 mid-term elections gave the Republicans the majority in the House of Representatives, and then-Speaker John Boehner’s (R-OH) top priority was repealing President Obama’s signature health care legislation.  Former Majority Leader Eric Cantor (R-VA) introduced HR 2 on the first day of the 112th Congress and it passed the now Republican-controlled House just two weeks later by a near straight party line vote of 245-189. However, with President Obama in the White House and the Democrats still the majority in the Senate, the repeal effort stalled.  Over the next six years, the House would pass more than fifty bills that would repeal the ACA in whole or in part.  While small changes were made to the ACA over the ensuing years, it would remain essentially intact until 2017.

Efforts to challenge the ACA were made in the courts as well.  In 2012, the Supreme Court heard its first case challenging the constitutionality of the ACA. 3  In a surprising and dramatic decision, the Court ruled 5 to 4 that, for the most part, the ACA was constitutional; however, it did strike down an important portion of the law having to do with Medicaid expansion, giving the nation’s fifty governors the option whether or not to expand Medicaid.  In the immediate aftermath of the Court’s ruling, the decision to expand Medicaid broke down almost exactly along party lines, with every Republican governor choosing not to expand Medicaid, and all but one Democratic governor doing so.

After the 2012 election, several Republican governors changed their minds.  The Department of Health and Human Services (HHS) granted states waivers which provided more flexibility so Republicans could tailor programs to better meet their philosophies and the needs of their states.  After President Obama was reelected, these governors had political cover and could expand their programs without having it seem as though they were validating the ACA at a time when doing so would have made them traitors since their decisions could have been advantageous for President Obama’s reelection effort.

Today about half the states with Republican governors have expanded Medicaid programs – some by legislation and others by a waiver.1  This includes Indiana, whose program was designed by current Centers for Medicaid and Medicare Services Director Seema Verma and was approved by current Vice President Mike Pence when he was governor. 4 This also includes states whose programs were expanded by a Democratic governor where control of the State House has switched, such as West Virginia.  With the exceptions of Kentucky and Arkansas, no newly elected Republican governor has made any serious effort to repeal or seriously curtail Medicaid Expansion at the state level.2

President Obama’s reelection deprived opponents of another important chance to repeal the ACA. While the ACA was passed in 2010 and certain provisions came into effect in the early years, the rubber really hit the road in 2014.   That was the year that many, although not all, of the major provisions took effect.  Medicaid expansion, creation of the exchanges, the tax credits and even the individual mandate came into being that year.  By failing to repeal the ACA prior to 2014, Republicans lost the opportunity to do so prior to the ACA becoming an integral part of the American health care system.  This proved to be a major impediment to future efforts at repeal.  Prior to 2014, repeal would have just meant preventing benefits from coming into effect; after 2014, repeal would involve taking existing benefits away from people, a much harder task.

On the electoral front, 2014 was another good year for the Republicans and they gained control of the Senate.  In the 114th Congress, House Republicans continued to pass repeal bills but they still had trouble getting a bill through the Senate.  Under Senate rules, you need sixty votes to overcome a filibuster.  Republicans only had fifty-four members in the Senate – not enough.  It is possible to pass certain bills in the Senate with only a simple majority under a process known as budget reconciliation, but the bill must be limited to budget issues.  Much of the ACA affects the federal budget but some key provisions do not, so the Senate could not pass a straight repeal.  In 2015 however, the Senate did pass a limited repeal bill and, after years of trying, finally got a repeal bill – a partial one at least – to the President’s desk.  Of course, President Obama was still in office and he vetoed it.

In 2015, another challenge to the ACA reached the Supreme Court.5 Some arguably rushed and poor drafting on the part of the ACA’s original authors gave plaintiffs an opportunity to dispute the validity of the tax credits in federally run exchanges. Yet in another surprising opinion, the court once again ruled, this time 6 to 3, in favor of the ACA.  There are still other potential legal challenges to the ACA, but none have advanced very far through the judicial process.

That brings us to 2016.  There were indications that although the ACA was working well overall, there were also reasons to be concerned about the future viability of the insurance exchanges.  But it didn’t matter.  Hillary Rodham Clinton was going to be elected the next President of the United States; Democrats stood a good chance of taking the majority in the Senate and even had a chance to do so in the House, although that was a longer shot.  President Clinton would never sign an ACA repeal bill; it was safe for the foreseeable future.  Small changes could even be made to strengthen it.

Of course, all that changed on November 8th, 2016 with the election of Donald Trump as President.  Republicans maintained control of the House and Senate as well.  On election night, then President-Elect Trump vowed that his first order of business would be to repeal Obamacare. 3

On January 3rd, 2017 the 115th Congress convened and both House Speaker Paul Ryan (R-WI) and Senator Mitch McConnell (R-KY) moved quickly to start the repeal process.  The first step was to put the budget reconciliation process in motion.  This would allow a repeal to pass the Senate with just a simple majority.

During the first week of January, the House passed a budget resolution that called on the Energy and Commerce and Ways and Means Committees to develop legislation that would reduce the federal deficit by $2 billion and, more importantly, repeal the ACA.  They were given two weeks to do so.  The deadline slipped, but by late February, the Committees had approved a repeal bill.  The next step was the Budget Committee which passed it on a party line vote.  This was also the first time we saw the Republicans include language specifically designed to win the votes of particular members – in this case, New York Republicans.  The so called “Buffalo Bribe” would discourage a state from requiring counties to contribute to Medicaid costs, a bigger issue in New York than anyplace else where counties cover a large percentage of the Medicaid costs.  Before anybody gets too indignant about the legislative horse trading, please do not forget that the Democrats and President Obama were also not above making deals in order to pass the original ACA bill.

Consideration by the full House was scheduled to occur in late March, just before the Easter Recess.  As expected, Democrats were absolutely united in their opposition and progressive groups were very vocal, but opposition also began to grow from Republicans, notably from two very different quarters.  Members of the Freedom Caucus on the right complained that the bill did not go far enough in repealing the ACA.  They wanted a full repeal, not something that resembled what they called “Obamacare Light.”  Conversely, moderates, members of the Tuesday Group or the Main Street Coalition, thought that the bill went too far and were especially concerned about the effect it would have on the number of uninsured and the bill’s cuts to Medicaid, cuts and changes that went even beyond just repealing the ACA.

A complicating factor was the Congressional Budget Office Score (CBO).  Under Congressional Rules, the CBO must determine what effect a bill would have on the federal budget deficit and in this case, it also had to predict the effect it would have on insurance rates and the number of uninsured.   The CBO is an arm of Congress and its director reports to the Speaker and the Senate Majority leader, but it is supposed to perform objective non-partisan analysis, giving the CBO a tremendous amount of influence on the legislative process.

Just before the bill went to the floor, the CBO released its analysis, and it wasn’t good news for the bill’s proponents.  While the bill would lower the deficit and decrease rates, it would increase the number of uninsured by 24 million.6  This did not bode well for passage.

What was now called the American Health Care Act (AHCA) went to the floor on March 28th, but Speaker Ryan, realizing he did not have the votes, pulled the bill.  Members of the House went home for recess, two months into the Trump Presidency, without having passed an Obamacare repeal bill.

The House bill was resurrected after the recess when the House included Freedom Caucus supported language that would give states more flexibility in complying with regulations. This included giving states the ability to allow exclusions for applicants with preexisting conditions.  CBO did issue a revised estimate, but it was very similar to the first.  They were still short on votes until the President struck a deal with two holdout Republicans – Billy Long (MO) and Fred Upton (MI) –  adding $8 billion to help cover medical costs for those with preexisting conditions.  On May 4th, the House passed the AHCA by a narrow margin of 217-213.4  No Democrat voted for the bill.

The action then moved to the Senate.  Early on, it became apparent that the Senate wanted to put their own stamp on the bill, but they did not hold any new hearings prior to consideration.   President Trump certainly did not do anybody any favors when he referred to the House bill as “mean.” 7 The Senate had hoped to take up the bill in June, but they could not meet that goal and the debate slipped into July.

In July, the Senate unveiled its draft bill, titled the Better Care Reconciliation Act (BCRA). Since the bill would be considered under reconciliation, Senator McConnell knew he only needed fifty votes to pass it, not sixty to overcome a filibuster.  Vice President Mike Pence would break the tie if need be.  Reconciliation did pose another problem, however, as the entire bill had to have a significant effect on the federal budget.  Any section of the bill that did not have an effect on the budget would be subject to a point of order and could be stricken from the bill.  This highlights the importance of the role of another unelected government official (in addition to the CBO) – the Senate Parliamentarian, currently Elizabeth MacDonough.  She and her staff would determine what was and what was not allowed as part of the bill.

Just before debate began, the CBO issued another report which showed that the BCRA would also increase the number of uninsured, in this case by 23 million.8 Debate was scheduled for the week of July 24th.  Just prior to this, Senator John McCain (R-AZ) announced that he had been diagnosed with a glioblastoma – the same type of brain cancer from which Senator Ted Kennedy had died. He would undergo treatment in Arizona but expected to be able to continue his work in the Senate.

The first test was the motion to proceed.  The Senate cannot even begin debate unless there is a motion passed allowing it to do so.  The make-up of the Senate at the time was 52 Republicans and 48 Democrats (including 2 Independents who caucus with the Democrats). With no Democrat expected to vote for the motion to proceed or for any version of the bill, Senator McConnell could only afford two Republican defections, and that is exactly how many he lost.  Senators Susan Collins (ME) and Lisa Murkowski (AK) voted no on the motion to proceed, but with Senator McCain having returned to Washington for the vote and Vice President Pence voting yes to break the tie, the motion to proceed was passed and debate could begin.

Now what would they debate?  Under the reconciliation rules, there would be twenty hours of debate and then they would move to final passage.  Senator McConnell set it up so the Senate would vote on three separate Republican proposals.  Democrats elected not to offer a proposal of their own.  The first was a version of the original BCRA bill.  That failed by a vote of 44-56.  The second was labeled “Repeal and Replace.”  The ACA would be repealed but not until 2020, thus giving Congress two years to come up with a replacement.  That failed 43-57.

The third, which was not unveiled until two days into the debate and less than three hours before it was voted upon, was referred to as the “skinny bill.”  It was a limited bill which would repeal the individual mandate, the corporate mandate, and the medical device tax, but leave just about everything else in the ACA in place.  In dramatic fashion, and after a long conversation with the Vice President, Senator McCain joined Senators Collins and Murkowski in voting no, sinking the bill by a vote of 49-51.

Seeing no way to get to 50 votes on any repeal plan, Senator McConnell pulled the bill and the Senate adjourned without passing a repeal bill.  Despite having a majority in both houses and the presidency, the Republicans could not deliver on their seven year mission to repeal the ACA.

As one might expect with a failure such as this, there was a lot of finger pointing with Senator McConnell getting most of the blame.  On the flip side, Senators McCain, Collins, and Murkowski became heroes among those opposing Obamacare repeal.

The fall of 2017 brought three significant new attempts to make changes to the ACA.  To repeal opponents, these efforts could best be described as the good, the bad, and the ugly. 9

Let’s start with the bad.  In August, two Republican Senators, Lindsey Graham (SC) and Bill Cassidy (LA), proposed making the ACA into a block grant.  With the ACA as written, individual states have a good amount of flexibility to shape health care in their state, but there were still rules and regulations with which they had to comply.  Among the reasons why Republicans disliked the ACA was that they felt these rules and regulations were too prescriptive.

The Graham Cassidy Amendment would have taken all the spending that was authorized by the ACA, including funding for expanded Medicaid and the exchanges, and turned them into block grant.  States would be free to spend on health care within their borders as they saw fit.  The catch–well, one of the catches at least – was that the total amount of funding would actually decrease over the years.

ACA supporters opposed the plan vigorously and once again the CBO score was not good.  The plan saved money, but if it passed, 23 million Americans would have lost coverage.10  Senator McConnell and other Republican leaders got behind the idea and started pushing for a vote in late September.  Although it would come to a vote in the Senate first, Speaker Ryan indicated his support for the plan as well.  The first sign of trouble was when Senator Rand Paul (R-KY) announced that he could not support Graham/Cassidy since it left too much of the original ACA in place, notably the individual mandate.  Soon thereafter, Senator Collins announced that she would not support the effort either and other Republicans followed suit.  This made passage impossible since once again as there were no efforts to include Democrats in the process.  Graham/Cassidy did not have the votes and efforts to pass it were dropped.

Now to the good:  after the failure of ACA repeal passage in the Senate in July, Senators Lamar Alexander (R-TN) and Patty Murray (D-WA), the Chair and Ranking Member of the Senator Health, Education, Labor, and Pensions (HELP) Committee announced that they would hold a series of hearings to try and develop a bipartisan consensus plan to strengthen and reform the ACA.  These hearings were held in September with several governors and health care experts testifying.  One of the major problems they identified was the uncertainty over the future of the Cost Sharing Reduction (CSR) payments.

The ACA included funding in the form of tax credits to help individuals purchase insurance, but even with these subsidies many policy holders faced burdensome deductibles and co-payments.  To address this problem, during the Obama administration, HHS started making CSR payments to insurance companies participating in the exchanges as a way to keep deductibles and co-payments down.  Congressional Republicans, arguing that these payments were never appropriated, sued and a lower court had ruled that these payments were illegal.  The Obama Administration appealed, and the case was still pending with CSR payments continuing when President Trump took office.  He immediately threatened not to continue the CSR payments and in fact did discontinue them in October of 2017.

After the hearings, Senators Alexander and Murray unveiled a plan that would continue funding for the CSRs.  It would also expand the availability of high deductible plans and instruct HHS to look favorably upon requests by states for relief from the ACA’s rules and regulations.  Senator Schumer signaled his support and even among progressives there was very little opposition even though the amendment could be seen as weakening the ACA.  Having just survived a close call on repeal, these changes were a small price to pay for continued CSR payments and at least a temporary halt to any further repeal efforts.  President Trump originally signaled his support of Senators Alexander and Murray, at least their effort if not their actual plan, but soon thereafter, after many other Republicans and conservative commentators came out against the plan, he criticized it as well, leaving it for the moment hanging in limbo while the President and Congress figured out what to do next.

The ugly is what Congress went through during the latter part of the fall 2017, and it was not even a health bill.  On October 1st, the federal fiscal year (FY) 2017 came to an end and with it the authorization to use the budget reconciliation process to pass ACA repeal came to an end as well.  Republicans would have to pass a new budget resolution in order to take the easier road.  But for FY 18, the priority for the Administration and Congress was tax reform, and there can only be one budget reconciliation bill per year.  The tax bill was such a priority that the House Republican leadership had in fact assigned the bill number H.R. 1.  It also had the very creative title of the Tax Cuts and Jobs Act.

In October, both houses passed budget resolutions authorizing them to use the reconciliation process to pass tax reform and in November, Congress started to put their bill together.  On November 16th the House passed its bill by a vote of 227-207, close but not the razor thin margin that they had needed to pass ACA repeal.

That same week, the Senate Finance Committee unveiled its bill and it included a major change to the ACA.  The bill would repeal the tax penalties associated with the individual mandate, thus in effect arguably making the individual mandate unenforceable.  Because the Supreme Court had ruled in 2012 that the individual mandate was not in fact a mandate but a tax instead, this was a perfectly legitimate move, procedurally at least, on the part of Senate Republicans.  Repeal of the mandate would have an effect on the federal budget.

The Senate tax bill made no other changes to the ACA, but without the individual mandate tax penalties, there was a real question as to whether the individual insurance market could continue to function. The CBO determined that repealing the individual mandate would cut the cumulative deficit by $338 billion over ten years, money Republicans desperately needed to pay for the tax cuts they wanted to pass, but doing so would also cause thirteen to fifteen million people to lose insurance.11

Several senators expressed early opposition to the tax bill so in order to secure passage, Senator McConnell needed to bring the opponents back into the fold.  Senators Ron Johnson (R-WI) and Steve Daines (R-MT) expressed opposition to the small business pass-through provisions and Senators Jeff Flake (R-AZ) and Bob Corker (R-TN) said they felt the bill added too much to the deficit.  Senators Johnson and Daines came around pretty quickly after some changes were made, as did Senator Flake after securing a promise from President Trump and Senator McConnell to take up legislation on the Deferred Action for Childhood Arrivals (DACA) issue.  Senator Corker remained a hold out.

Of the three Republican Senators who had voted no in July and sank that effort to repeal the ACA, Senator Murkowski was perhaps the easiest target.  Part of the tax bill would open up the Arctic National Wildlife Refuge for oil and gas exploration.  Passage of this has been a top agenda item for every elected official from Alaska, regardless of party, for at least the last thirty years.  Although she was among the last to announce her support, this was too good an opportunity to pass up.  Senator McCain also announced that he would support the bill.

The hardest nut to crack would be Senator Collins.  She had many concerns about the deductibility of state and local taxes (SALT) and was of course opposed to unduly weakening the ACA.  But after weeks of negotiation, she got on board.  The Senate authors made changes to satisfy her concerns on the SALT issue and she said she secured a promise from the President and Congressional leaders to pass a measure to maintain the CSR payments and shore up the ACA.

The Senate passed its tax reform bill, including the repeal of the individual mandate provision, in the middle of the night on December 2nd.  The vote was 51-48.  Every Democrat plus Senator Corker voted no.  Since there were several differences between the House and the Senate bill, the two houses had to go to a conference committee to work out the differences.

On December 14th, the metaphorical puff of white smoke appeared from the Capitol dome as Republican leaders announced that they had reached a deal.  They were so close to passing the tax bill, and with it the repeal of the individual mandate, yet once again things got complicated.

For one, it was not entirely clear who would be in the Senate and get to vote on the bill.  On December 12th, in Alabama, Democrat Doug Jones defeated Republican Roy Moore in the special election to replace Jeff Sessions who had resigned to become Attorney General.  At that moment the seat was occupied by Luther Strange who had been appointed interim Senator by former Alabama Governor Robert Bentley.  Senator Strange was a reliable yes vote, but Senator Jones would not be.

Under Alabama law, Senator Jones’s victory could not be certified until December 26th at the earliest.5  Many Democrats called on Senator McConnell to delay the final vote until Senator Jones was sworn in, noting that in 2010 when Massachusetts Republican Scott Brown was elected in a special election, thus denying Senate Democrats the filibuster proof majority they needed and had had to pass an earlier version of the ACA, Democrats did not take up final passage of the bill until Senator Brown was sworn in.  Truth be told, at that time, Democrats did consider trying to rush passage of the ACA and making an end run around Senator Brown by passing the bill before he was sworn in, but elected not to do so.  Even so, the strategy they used to pass the bill in 2010 was shall we say, creative.

In November, reports emerged that Senator Al Franken (D-MN) had been accused of engaging in inappropriate sexual behavior.  Over the next few weeks, several more women came forward with similar accusations and several senators, including many Democrats, called on Senator Franken to resign.  On December 19th, Senator Franken announced that he would step down but did not say when, so at first it was not clear whether he, a sure no vote, would still be in the Senate for the final vote.  His resignation became effective January 2nd so he was there to vote against final passage of H.R. 1.  In any event, the Democratic Governor of Minnesota, Mark Dayton, appointed Lt. Governor Tina Smith, another Democrat, as Senator Franken’s replacement.6

The final issue was related to the health of two senators.  Senator McCain suffered some complications from his cancer treatment and missed several votes in December.  Senator Thad Cochran (R-MS) also had health issues and was absent on several days during the fall.7  Without Senators McCain and Cochran, passage would be much more difficult.

The details of the Conference agreement became public during the week of December 11th and Republicans immediately ran into a problem.  Senator Marco Rubio (R-FL) announced he could not support the bill since it did not include a high enough child tax credit.  A quick trip back to the drawing board fixed that problem, and so the bill came to the House and Senate floors the week of December 18th.  First it passed the House by a vote of 227 to 205, again with no Democrats supporting the bill and only 13 Republicans opposing it.  It was all set to pass the Senate when another problem arose.  The Senate Parliamentarian determined that three different sections of the bill violated the budget rules.  These were fairly minor provisions, although one did specifically benefit a small college in Senator McConnell’s home state of Kentucky.  Striking them from the bill did not change anybody’s vote, but it did mean that the bill had to go back to the House one more time and so final passage was delayed another day.

On December 20th Congress did finally pass H.R.1, the tax reform bill, and sent it to President Trump for his signature.  The bill included the provision repealing the individual mandate tax penalties.

After the tax bill passed, Speaker Ryan said that the deal among Senator Collins, Senator McConnell, and the President did not include him and that the House did not support the Murray/Alexander bill, so it remains to be seen whether the promise the Senator Collins secured would be fulfilled.  As of the fall of 2018, it was not.

In February, the Senate took up immigration reform but could not come to any agreement on a compromise that could pass both houses and be signed by the Senate, thus leading Senator Flake to feel somewhat betrayed.  Since then he has voted or threatened to vote against the party on several occasions and said that he questioned whether the Republican Party was qualified to lead.12 He did however vote to confirm Brett Kavanagh to the Supreme Court, although, along with Senator Collins, was one of the last Republicans to come on board.

Also, in February, President Trump submitted his FY 19 budget proposal in which he included a proposal to repeal the rest of the ACA and replace it with a plan similar to the Graham/Cassidy proposal which failed to pass in 2017.  The budget would also convert Medicaid into a block grant program just as the House plan tried and failed to do last year.  It is important to understand that with any president, the budget proposal is just that, a proposal.  Congress must review and act upon it before it becomes law, and will often reject or make significant changes.  In fact, presidential budgets are often pronounced, regardless of party, to be “dead on arrival.”

President Trump has described the repeal of the individual mandate enforcement provisions as tantamount to repeal of the ACA and it remains to be seen what happens to the exchanges without the mandate, or the CSR payments for that matter.  Can the exchanges survive without them?

On February 26th, 2018, twenty Republican State Attorneys General (RAG), led by Ken Paxton and Brad Schimel of Texas and Wisconsin respectively filed a lawsuit seeking to strike down the ACA.  In 2012, when the Supreme Court struck down, in part, the Medicaid expansion provision of the ACA, it specifically held that the rest of the act would stand.  The provision was severable.  The absence of mandatory Medicaid expansion did not invalidate the rest of the law.

With the repeal of the individual mandate tax penalties, the RAGs argue that the ACA can no longer stand.  Without a mechanism to enforce the mandate, the rest of the act becomes unmanageable and unenforceable and it should be struck down in its entirety.   The Trump Administration announced that it would not defend the ACA in this lawsuit.  Furthermore, although it did not join the RAGs and specifically argue for the entire act to be invalidated, the Administration did argue that without an enforceable individual mandate, requiring insurers to cover people with preexisting conditions was unfair and thus that provision should also be struck down.  The courts have yet to act upon on the RAG lawsuit.

On August 25th Senator McCain passed away.  Arizona Governor Doug Ducey appointed former Senator Jon Kyl to fill the seat until a special election could be held in 2020, although Senator Kyl has only committed to serving until the beginning of 2019.  Senator McCain had voted against ACA repeal but Senator Kyl would likely be a yes vote on any ACA repeal effort.  Remember though that with Senator Jones’s victory in Alabama, there is one less Republican than there was in 2017, so the result would likely be the same.8

In the November 2018 midterm elections, the Democrats took control of the House of Representatives and will hold the majority in the 116th Congress.9  Republicans appear to have strengthened their majority in the Senate by anywhere from one to two votes.10  With the death of Senator McCain, and the retirement of Senators Corker and Flake, the Senate Republicans would appear to be a more united caucus than they have been over the past two years.  Although Senators Murkowski and even Collins will no doubt from time to time stray from the party line, Senator McConnell now has the votes to pass measures without them.  Democrats also did very well in Governors races across the country, taking control of seven additional state houses.11

Democratic control of the House probably means that any Republican hopes for a complete repeal of the ACA are now lost.  However, that does not mean that the President and Republican in Congress will necessarily give up.  The President can still use the regulatory process and administrative procedures to try and weaken the ACA.   He can also try and cut the budget for certain ACA activities.  For instance, as he has done in the past, he can reduce the amount the federal government spends on advertising and marketing in order to get people to sign up for exchange plans.   He can also make it very difficult for States to get waivers needed in order to expand or make changes to their Medicaid programs.

While they no longer have control of both Houses the way they did in 2017/2018, Republicans still have a number of cards they can play in order to make changes to the ACA.  The Democrats in the House will spend a lot of time and effort trying to block much of the President’s agenda and using their new-found power to hold hearings and conduct oversight, yet there are still a number of things they want to accomplish.  These include protecting the Robert Mueller Special Counsel Investigation from interference (or termination) by the Administration and codifying the DACA policy.

These are just two of several items about which House Democrats in the House may feel the need to cut a deal with the President and Senate Republicans.   While Democrats will never agree to a repeal, it is entirely possible that such a deal could include some changes to the ACA.  They may not like it, but it may, or may not, be the price they have to pay in order to achieve their goals on DACA, the Special Counsel, or other issues.  So while complete repeal may be off the table for now, the Trump Administration may still pursue a “death by a thousand paper cuts” strategy.

With each passing year, the ACA has become more ingrained in the nation’s health care delivery and insurance system.  History has shown that while it is possible to make major changes to major government programs, it is not easy.  There are tremendous political pressures to maintain them.  The ACA also appears to have come out of the 2018 elections much stronger.  Three states – Idaho, Utah, and Nebraska – passed referenda in favor of Medicaid expansion.  Montana chose not to continue with Medicaid expansion, and so the expansion will sunset on June 30th, 2019 unless the legislature acts, thus making it possible the first state to go back on expansion.

In addition, three non-expansion states just elected new Democratic Governors so there could be a strong effort to expand Medicaid in Kansas, Maine, and Wisconsin. Of course, some of these efforts to expand or make changes could run into opposition from the Administration for any Medicaid waivers they would need.  Three expansion states – Alaska, Iowa, and Ohio – did elect new Republican Governors, but repealing expansion remains difficult to do politically.

The 2018 election is over, and of course everybody is looking towards 2020.  Polls indicated that in this election, health care was the most important issue in the minds of voters.13 14 Will that continue to be true over the next years?  Who knows?  There are probably upwards of forty people who have expressed an interest in or whose name has been mentioned as a potential challenger to President Trump.  For those that do end up running, how important an issue health care becomes to their campaign remains to be seen.  It’s unclear how much of a litmus test support of a Single Payer Plan will become for Democratic Presidential hopefuls.  All 435 House members will be up again for reelection in 2020.  It certainly appears that running against the ACA was not a successful strategy for Republicans in 2018.  Will they try to do so again?  In the Senate, Republicans will be defending twenty-three seats, including two in states that Secretary Clinton won in 2016, Colorado and Maine. For many of these Republican incumbents who ran and won in 2014, repealing the ACA was a major part of their platform.  Will they stick with that strategy or move onto other issues?  Stay tuned.

My old boss Senator Daniel Patrick Moynihan once said something to the effect that if you want to achieve a major change in social policy, you better have thirty years to get it done, otherwise don’t bother.  Former First Lady Clinton first put forth a health care reform bill in 1993, it was seventeen years before the ACA would pass, and  opponents have been trying to repeal it for the past eight years. Who knows, maybe in the next five years we will get it all figured out. With Congress now divided, and many people on both sides of the aisle seeing any sort of compromise as a betrayal, that may be a tall order.

Footnotes

1. Maine passed a statewide referendum supporting expansion but the Governor has refused to implement it.  As noted later in this article, based on the results of the 2018 midterm elections, the number of states with expanded Medicaid is likely to increase.

2. Expansion in Montana is now in jeopardy but that is a result of a failed referendum, not a newly elected Republican Governor.

3. At a victory speech given in New York.

4. There were five vacancies at the time.

5. He was sworn in on January 4th.

6. Yes, Ms. Smith and Mr. Jones did enter the Senate the same week.

7. Senator Cochran would end up resigning from the Senate in March of 2018 because of ill health.  He was replaced by another Senator Smith – Senator Cindy Hyde-Smith.

8. Governor Ducey was reelected in November 11th, 2018 so should Senator Kyl choose to resign, the Governor could, and would likely appoint another Republican to the seat who would serve until the special election in 2020.

9. As of November 14th the tally in the House appears to be 228 Democrats and 200 Republicans with seven races yet to be called.

10. As of November 11th there will be at least 51 Republicans and 47 Democrats in the Senate next year, with Florida and Mississippi yet to be determined.

11. The final outcome of the Governors races in Florida and Georgia are still undetermined but it still does look as though the Republicans will win both.

 


References

  1. One-off from phrase used in the opening to ABC’s “Wide World of Sports”
  2. Eagles, “Hotel California”
  3. National Federation of Independent Business v. Sebelius.” Oyez, 27 Dec. 2018, www.oyez.org/cases/2011/11-393
  4. “The Henry J. Kaiser Family Foundation.” The Henry J. Kaiser Family Foundation, The Henry J. Kaiser Family Foundation, www.kff.org/
  5. “King v. Burwell.” Oyez, 27 Dec. 2018, www.oyez.org/cases/2014/14-114
  6. “American Health Care Act.” Congressional Budget Office, 13 Mar. 2017, www.cbo.gov/publication/52486
  7. Merica, Dan, et al. “Trump Calls House Health Care Bill ‘Mean’.” CNN, Cable News Network, 14 June 2017, www.cnn.com/2017/06/13/politics/trump-senators-health-care-white-house-meeting/index.html.
  8. “H.R. 1628, the Better Care Reconciliation Act of 2017: An Amendment in the Nature of a Substitute.” Congressional Budget Office, 20 July 2017, www.cbo.gov/publication/52941
  9. 1966 film starring Clint Eastwood
  10. “Preliminary Analysis of Legislation That Would Replace Subsidies for Health Care With Block Grants.” Congressional Budget Office, 25 Sept. 2017, www.cbo.gov/publication/53126
  11. “Repealing the Individual Health Insurance Mandate: An Updated Estimate.” Congressional Budget Office, 8 Nov. 2017, www.cbo.gov/publication/53300
  12. Killough, Ashley. “Jeff Flake: GOP ‘Might Not Deserve to Lead’.” CNN, Cable News Network, 16 Mar. 2018, www.cnn.com/2018/03/15/politics/jeff-flake-criticizes-gop-trump/index.html
  13. “Polling.” The Henry J. Kaiser Family Foundation, The Henry J. Kaiser Family Foundation, 19 Dec. 2018, www.kff.org/polling/
  14. Mitchell, Travis. “Pew Research Center.” Pew Research Center, Pew Research Center, 17 Dec. 2018, www.pewresearch.org/