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Dude, Where’s Our Health Care? A Primer on that Other Justice Department Letter We Must Look At

For the past two months, we’ve been watching and listening as several Democratic presidential candidates describe their respective health care proposals. Should America build upon what’s already in place, or should the nation aim for much bigger, bolder, “braver”, and what some might call “radical” change?

Yet while Democratic candidates and activists are debating the merits of new health care legislation, the current health care law is under attack by the current Republican administration. And while all of Washington is talking about the Attorney General’s letter on Special Counsel Robert Mueller’s investigation, the Justice Department just dropped another letter advocating the entire abolition of that health care law.

Yes, Mueller is important, but Barr’s letter isn’t the only hinky letter emanating from the Justice Department.

On Sunday, U.S. Attorney General William Barr released a four-page letter he claimed was an accurate summary of the findings from Special Counsel Robert Mueller’s investigation into President Donald Trump’s 2016 campaign and Russian interference in that election. Trump and his allies were quick to claim “EXONERATION!”, and a parade of national media pundits more or less echoed this claim. But over the last 48 hours, at least some in the national media have done double-takes and realized that a four-page letter from a top administration official who has every incentive to downplay the uglier parts of Mueller’s full report probably does not tell the full story of the Trump organization’s relationship with the Russian government.

However, I don’t want to focus on this today. (We’ll have future opportunities to do a deeper dive into Mueller and all things Trump-Russia.) Rather, I’d like to show you another letter that the Justice Department just dropped last night.

This pertains to Texas v. Azar, the latest lawsuit seeking to overturn the Affordable Care Act (ACA, or Obamacare). Last December Texas federal judge Reed O’Connor struck down the entire ACA, but issued a stay on his ruling so the 2010 health care law can remain in place pending appeal. But now that the appeal has reached the Fifth Circuit Federal Court of Appeals, the Justice Department has filed a brief in support of Judge O’Connor’s ruling, which means the Trump administration is on record in favor of wiping out the entirety of the ACA’s patient protections, health care industry regulations, health insurance exchanges, and Medicaid expansion.

So really, what does this mean?
Photo by Andrew Davey

Without the Affordable Care Act, health insurance coverage for some 243,000 Nevadans and $639 million in federal health care funding for the State of Nevada would likely be wiped out. To put this into better context, Nevada is already having trouble keeping up with our people’s health care needs as is. The stripping of $639 million from the state’s health care budgets and the stripping of health insurance from 243,000 people would only exacerbate this problem and undo Nevada’s recent progress in bringing down our uninsured rate.

When he visited Las Vegas last September to campaign for Nevada Republicans, President Donald Trump proclaimed, “Republicans will protect patients with pre-existing conditions.” And yet, the Trump administration’s actions do not align with Trump’s promise. For over a year, the White House has been releasing rules changes that amount to the development of new loopholes that allow insurers to resume discriminating against patients with pre-existing conditions, and loopholes that allow insurers to drop coverage for preventive care and other essential benefits.

Thus far Congressional Republican leaders have gone along with Trump’s wishes, including multiple legislative attempts to repeal most of the ACA. They failed each time since July 2017, save a provision in the December 2017 Trump-GOP Tax Law that zeros out the penalty on the individual mandate to have health insurance. While the individual mandate repeal will likely result in fewer Americans covered, Republican leaders’ failure to pass any of their larger Trumpcare bills nonetheless signaled Congress’ intent to keep the rest of Obamacare fully intact.

So what’s the state of health care now, and how might this Obamacare lawsuit affect future health care reform efforts?
Photo by Andrew Davey

Despite these multiple failures to convince Congress to repeal the ACA, Judge O’Connor and the Trump administration (by way of last night’s brief to the Fifth Circuit) are arguing that the 2017 tax law’s zeroing out of the individual mandate amounts to the wholesale cancellation of the entire ACA. The vast majority of legal experts across the ideological spectrum have rejected this strange theory and predicted either the Fifth Circuit or the U.S. Supreme Court will eventually dismiss this suit due to the full account of what Congress did and did not pass to change the ACA.

While a majority of Supreme Court Justices have previously ruled to uphold the health care law, our current highly charged political environment serves as a reminder that nefarious politics can sometimes still trump what should be “settled law”. So in the unlikely-but-still-theoretically-possible scenario that the Supreme Court sides with Trump and agrees to essentially override Congress in repealing the ACA, what happens next?

Photo by Andrew Davey

On one hand, this could strengthen the hands of progressive Democrats like Senators Elizabeth Warren (D-Massachusetts), Bernie Sanders (I-Vermont), and Kirsten Gillibrand (D-New York) who advocate “Medicare for All” single-payer health care. With the last attempt to preserve and enhance the private-based health insurance system obliterated, future political leaders seeking universal health care could have no choice left but to dismantle the private-based health insurance system and replace it with a universal public insurance program based on Medicare and/or Medicaid.

But then again, with Medicaid itself at risk with this ACA lawsuit, a Supreme Court decision striking down the entire ACA could also make it harder for future presidents and members of Congress to do anything else with a ruling that invalidates Medicaid expansion and places preexisting public insurance programs in legal jeopardy. This has me thinking of that classic saying, “Be careful what you wish for”… And I suspect this potential for enormous disruption and destruction has several Supreme Court Justices thinking the same thing. But unless and until the Supreme Court makes a decision one way or another, the Trump administration’s latest gambit to overturn Congress on ACA repeal may be just as consequential to the nation’s future (if not more so) as their efforts to obfuscate the complete Mueller Report.

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