The U.S. Supreme Court recently declined a request by a group of blue states, led by California Attorney General Xavier Becerra, to move quickly to hear Texas v. The United States, one of the latest challenges to the constitutionality of the Affordable Care Act (ACA).
The blue state group’s intent was to make the case a focal point of the 2020 Presidential election. As a result of the Supreme Court’s denial, the case was sent back to the federal judge in Texas who issued the original decision, which means the Court will not hear the case until at least the next term, which begins in October.
The argument against the ACA’s constitutionality
Those challenging the ACA’s constitutionality argued it was invalidated in late 2017 after Congress removed the tax penalty for not having health insurance while leaving the rest of the law in place. This challenge sounds similar to an earlier challenge arguing the law was invalidated after the tax penalty for not having insurance was reduced to zero. In that case, the courts said that the law was not invalidated because a future Congress could make the tax penalty something other than zero. Most legal scholars reportedly do not support the claim of a “lack of severability” (i.e., that the tax provision cannot be removed without invalidating the law) that is central to the most recent challenge.
ACA election rhetoric
Even though the Texas case will not be resolved in 2020, Democrats can still be expected to highlight the Republicans’ continuing challenges to the ACA in their 2020 election rhetoric — and what a successful challenge could mean for pre-existing condition coverage protection. This protection is strongly supported by a majority of Americans, including a majority of Republicans, and even though President Trump previously pledged to retain the protection, irrespective of any other changes that might result, the threat perceived to this provision has been a powerful tool for Democrats. It is ironic that pre-existing condition coverage protection has always been one of the most popular features of the ACA — even when the legislation was being debated in 2009 — because similar protection was already in place for people in plans covering at least two individuals in 1996, with the passage of HIPAA, and in a few states, including New York and Connecticut, it was available even for individual plans.
An unclear election strategy
Raising healthcare in general or changing particular ACA provisions does not seem to be in the Republicans’ interest, especially during periods when they are in power and therefore can be expected by the public to be able to deliver on their healthcare policy proposals. Calls to “repeal and replace” the ACA were a useful rallying cry for the party from 2010 to 2016 when they were not in full control of government and, thus, couldn’t be expected to deliver on a promised legislative alternative to the ACA. But the Republicans’ lack of success with “repeal and replace” efforts after the 2016 election should have made it clear to them that such an approach would not be in their political interest in this election cycle, and it does not seem to have done so.
The fate of Republicans’ alternatives
Consider the challenges Republicans faced in pursuing this strategy between 2016 and 2018.
Early in this period, they lacked a unified vision of an alternative to the ACA. The House Republicans, led by Paul Ryan, had put together an agenda called “A Better Way” that focused on jobs and the economy, taxes, healthcare, national security and poverty. At the time, they pledged to try to implement their plan if/when they were in the majority. However, Republicans in the Senate did not have a comparable unifying proposal for what they would do when in control, and attempts to achieve such a consensus after the election proved impossible for Republicans with just a narrow majority.
The second challenge Republicans faced in passing an ACA replacement was from having only a razor-thin majority in the Senate — initially 52-48 and then 51-49, after Republicans lost the Jeff Sessions seat in Alabama following his appointment to Attorney General in early 2017. Recall how hard it was for Democrats to pass the ACA in 2009-10, even with a supermajority of 60/40 (counting two independents in the Democratic column). It took the appointment of Democrat Paul Kirk to serve as an interim senator after the death of Sen. Ted Kennedy until Massachusetts could have a special election to again give Democrats a filibuster-proof majority and the ability to pass what then was perceived to be highly controversial legislation.
Public support leans toward the Democrats on healthcare policy
The public’s view of the ACA has had its “ups and downs” over the years, but public support has remained just above 50%, on average, since President Trump was inaugurated. There is greater support, however, for many of the individual provisions contained in the ACA, and any perceived threats to these popular provisions are met with substantial resistance.
It seems the public not only trusts Democrats more with protecting the ACA, but also trusts the Democratic party to do a better job with most healthcare issues. An October 2018 election tracking poll by the Kaiser Family Foundation found that the public trusts the Democrats to do a better job protecting women’s access to reproductive health services, maintaining Medicaid expansions, continuing protections for people with pre-existing conditions and improving the health of minority populations, with Democrats leading 2:1 over Republicans in these issues. An April 2019 poll by the AP-NORC Center for Public Affairs Research pointed to a 17% advantage for Democrats over Republicans regarding who the public trusts more to handle healthcare, even though the response was more evenly divided regarding who the public trusts for other areas of national policy.
Given past experience and the polling that continues to point to Democrats’ overwhelming dominance over Republicans in gaining the public’s trust regarding healthcare policy, one can only wonder why Republicans would voluntarily keep raising healthcare as an election issue.
Public and political party support for the ACA
- Favorable: 53%
- Unfavorable: 37%
- Favorable: 84%
- Unfavorable: 10%
- Favorable: 55%
- Unfavorable: 34%
- Favorable: 19%
- Unfavorable: 74%
Source: KFF Health Tracking Poll: The Public’s Views on the ACA, Jan. 30, 2020.