June 25, 2020

Just before midnight tonight, the Department of Justice filed a brief asking the Supreme Court to invalidate the Affordable Care Act-- also known as Obamacare—the health care law that has enabled millions of Americans to get health insurance.

In addition to making healthcare affordable, the law prohibits discrimination because of pre-existing conditions and allows young people to stay on their parents’ health insurance policies until they are 26. In 2020, about 11.4 million people signed up for Obamacare policies, while nearly 12.7 million adults are covered by the law’s expansion of Medicaid. The law has increased the number of Americans covered by health insurance and slowed the rise of health care costs across the board.

Republicans have vowed to get rid of the ACA since it became a law in 2010. Their opposition is based in their larger objection to an activist government that regulates business, provides a basic social safety net, and promotes infrastructure. Such a government, today’s Republicans argue, is essentially socialism: it prohibits an individual’s ability to control one’s business without government interference, and it redistributes wealth from the haves to the have-nots through taxes.

In 2014, Fox News Channel personality Bill O’Reilly explained: “Obamacare is a pure income redistribution play. That means President Obama and the Democratic Party want to put as much money into the hands of the poor and less affluent as they can and the healthcare subsidies are a great way to do just that. And of course, the funds for those subsidies are taken from businesses and affluent Americans who have the cash…. Income redistribution is a hallmark of socialism and we, in America, are now moving in that direction. That has angered the Republican Party and many conservative Americans who do not believe our capitalistic system was set up to provide cradle to grave entitlements…. Obamacare is much more than providing medical assets to the poor. It's about capitalism versus socialism.”

For their part, Democrats believe that regulating business, providing a basic social safety net, and promoting infrastructure is not socialism; it is simply keeping unfettered capitalism from destroying society, and it is precisely what government should do. House Speaker Nancy Pelosi (D-CA) tonight said “President Trump and the Republicans’ campaign to rip away the protections and benefits of the Affordable Care Act in the middle of the coronavirus crisis is an act of unfathomable cruelty.” Presumptive Democratic presidential nominee Joe Biden, who is proposing to expand the law, said "I cannot comprehend the cruelty that's driving him to inflict this pain on the very people he's supposed to serve.”

The Trump administration has taken the unusual step of using the DOJ not to defend a law in court, as is its normal role, but to oppose it. Such a position is not unheard of, but it’s rare. To kill the law, DOJ lawyers had to file a legal brief by midnight tonight in support of a lawsuit against the Affordable Care Act brought by Republican-dominated states.

The exact timing of this filing was not up to the DOJ, but the move to destroy the Affordable Care Act altogether at this particular moment is nonetheless interesting for two reasons.

First of all, we are in the midst of a global pandemic, and it’s not going well. Today America set another record for new coronavirus cases: 39,327. The previous single-day record was the day before, when we had 38,115 new cases. The death toll also jumped to about 2,500. Director of the Centers for Disease Control Robert Redfield told reporters today that antibody tests suggest that the number of Americans who have been infected with the virus is probably ten times what we knew. He estimated that at least 24 million Americans have been infected, about 5 to 8 percent of the population.

America’s struggle with the virus stems in part from the unwillingness of the Trump administration to use federal resources to fight it, maintaining that it is not the job of the federal government to underwrite social welfare. Instead, Trump has urged states to reopen and people to go back to work, in part to keep people off unemployment benefits. The administration’s insistence on hard-core individualism has prompted Trump and his supporters to reject the use of masks, which we now know are key to slowing the spread of the virus, and to ignore social distancing guidelines.

And now, just as the effects of such toxic individualism have become clear—America has 4% of the world’s population and 25% of the world’s deaths from Covid-19—the administration is doubling down on that individualism. In the midst of a pandemic that has revealed just how shaky our healthcare system is, the administration is asking the Supreme Court to destroy the law that enables 23 million Americans to afford healthcare insurance. White House spokesman Judd Deere dismissed criticism about killing the Affordable Care Act during the pandemic, saying, “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.”

There is a second reason the timing of this request is interesting. As recently as last month, Attorney General William Barr, who oversees the DOJ, privately urged senior officials to moderate their opposition to the Affordable Care Act, not on principle, but because it is popular, and killing it entirely could hurt the Republican Party badly in an election year… especially in an election year in the midst of a pandemic. That the Department of Justice is taking this strong stance right now, as Trump’s polling numbers continue to slide, suggests that Republican leaders are eager to kill the law while a Republican president still controls the DOJ.

There were two big indicators today that the Trump campaign is nervous about the upcoming election. First, CNBC ran a story about finance executives shifting their support to Biden, despite their fear he will raise the corporate tax rate from 21% to 28% (it was 36% before Trump’s tax cuts) and restore regulation. According to the article, financiers are furious with Trump’s handling of the pandemic, which is both crippling the economy and making America look pathetic compared to the European Union. With their switching loyalty—or at least their changing view of the likely outcome of the 2020 election—financiers are donating to Biden’s campaign, injecting cash where it will further hurt the Trump campaign.

Even more telling was the conversation Trump had tonight with Fox News Channel personality Sean Hannity. After repeating his usual attacks on Biden, saying he was old and declining mentally, Trump said “And he is going to be president because some people don’t love me, maybe. And all I’m doing is doing my job.”

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Notes:

https://www.brookings.edu/blog/usc-brookings-schaeffer-on-health-policy/2019/09/18/the-trump-doj-has-taken-an-unexpected-and-unworkable-position-on-the-aca/

https://www.nytimes.com/2019/05/01/health/unconstitutional-trump-aca.html

https://www.cnn.com/2020/06/25/politics/trump-administration-obamacare-supreme-court/index.html

Trump vows to destroy the ACA: https://www.washingtonpost.com/world/national-security/trump-obamacare-supreme-court/2020/05/06/4a53ba54-8fe1-11ea-9e23-6914ee410a5f_story.html

https://www.washingtonpost.com/nation/2020/06/26/trump-obamacare-supreme-court-brief/

O’Reilly: I won’t link to this segment because FNC often clogs servers. Google “Obamacare and socialism” and it comes right up.

https://www.cnbc.com/2020/06/25/wall-street-executives-brace-for-biden-win-as-trump-fades-in-polls.html

Biden statement: https://www.thedailybeast.com/trump-seemingly-tells-sean-hannity-that-biden-will-win-saying-hes-going-to-be-your-president

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