May 2, 2019

The Trump administration's case for killing the ACA

Photo: Chip Somodevilla/Getty Images

The Trump administration has laid out its full argument for why a federal appeals court should invalidate the entire Affordable Care Act — and it's a doozy.

The big picture: It comes down to "severability," and severability comes down to congressional intent. The thinking goes: if the ACA's individual mandate is unconstitutional — which is not a given — can other parts of the law function the way Congress intended?

The challenge for the Justice Department is squaring the intentions Congress expressed in 2010, when it first passed the ACA, with the intentions Congress expressed in 2017, when it nullified the individual mandate but left the rest of the law intact.

  • When Congress passed the ACA, it included findings that said the individual mandate was key to making the law's protections for people with pre-existing conditions work. As DOJ notes in its new brief, Congress has not repealed those findings.
  • But Congress has designed a new statute — one that keeps the protections for pre-existing conditions and doesn't have a penalty for being uninsured.
  • DOJ is arguing here that Congress' decision to enacted that set of policies is not evidence of Congress' intent — that its words from 2010 effectively override its actions in 2017.

Even that logic only takes you as far as striking down the mandate and protections for pre-existing conditions — the provisions Congress said were tied together. But that’s not the case DOJ is making. It says the whole ACA should go.

  • It's sort of a cascading theory — that once the provisions on pre-existing conditions fall, the rest of the law's insurance reforms can't work as intended, so they should fall, and once they fall, the taxes that help pay for them aren't working as intended, which means the Medicaid expansion now would be increasing the deficit, which means it should fall.

The ACA is much more than its insurance reforms. And the DOJ's latest brief acknowledges that "there are other provisions that might be able to operate in the manner that Congress intended" even if those reforms are struck down.

  • But the courts should strike those provisions down anyway, DOJ argues, because they're still part of the ACA — or, in DOJ's words, "the question of congressional intent as to those provisions is complicated by the circumstances surrounding their enactment."

Go deeper: How the ACA went from unpopular to (sort of) popular

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Illustration: Eniola Odetunde/Axios

Here's the growing dilemma for 2020 Democrats vying for a one-on-one showdown with frontrunner Bernie Sanders: Do they have the guts — and the money — to first stop Mike Bloomberg?

Why it matters: Joe Biden, Pete Buttigieg, Amy Klobuchar and Elizabeth Warren all must weigh the costs of punching Bloomberg where he looks most vulnerable: stop-and-frisk, charges of sexism, billionaire entitlement. The more zealous the attacks, the greater the risk he turns his campaign ATM against them.

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Source: "Presidents and US Economy", Trump figures through 2019 courtesy of Alan Blinder; Note: Data shows real GDP and Q1 growth in each term is attributed to the previous president; Chart: Axios Visuals

Average economic growth under President Trump has outpaced the growth under Barack Obama, but not all of his recent predecessors.

Why it matters: GDP is the most comprehensive economic scorecard — and something presidents, especially Trump, use as an example of success. And it's especially relevant since Trump is running for re-election on his economic record.

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Data: The Center for Systems Science and Engineering at Johns Hopkins, the CDC, and China's NHC; Note: China refers to mainland China and the Diamond Princess is the cruise ship offshore Yokohama, Japan. Map: Danielle Alberti/Axios

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The big picture: COVID-19 has now killed at least 1,770 people and infected almost 70,000 others. Most cases and all but five of the deaths have occurred in mainland China. Taiwan confirmed its first death on Sunday, per multiple reports, in a 61-year-old man with underlying health conditions. Health officials were investigating how he became ill.

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