The Trump administration’s decision not to defend key provisions of the Affordable Care Act could deal Democrats a sizable win going into the midterm elections, handing a party already prepared to run on health care a cudgel to use against vulnerable Republicans.
Voters, both in interviews and a series of polls, have consistently said that health care is the issue they care the most about going into the midterm elections and Democratic candidates have responded by making it the cornerstone of their attacks on Republicans.
On Thursday, the Trump administration clearly outlined their position on key – and popular – provisions in the Affordable Care Act, telling a court that the law should be invalidated and that the individual mandate is unconstitutional. In the legal filing, the Department of Justice argues in favor of invalidating protections for those Americans with pre-existing conditions.
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Just prior to the Trump administration’s announcement that it would no longer defend key provisions of the Affordable Care Act in an ongoing case brought by Texas and other states, several career Justice Department attorneys withdrew from the case.
“It’s pretty simple: new legal position, new team. It’s not uncommon to make this kind of switch,” a department spokesperson said Thursday night.
But Marty Lederman, who worked in the Obama Justice Department and now teaches at Georgetown Law School, says the move was unprecedented.
“Perhaps such a mass withdrawal of DOJ attorneys from a case has happened before,” he wrote in a post for the legal blog Balkinization on Friday morning. “If so, however, I am not aware of it.”
It’s not that attorneys withdraw from cases, but rather that so many did so at one time, according to Lederman.
Lederman also wrote that attorneys from the federal programs section of the department’s Civil Division often make “very aggressive and unlikely-to-prevail arguments in defense of federal programs and statutes” and that the division is not “timid.” He added that lawyers can request to be reassigned from a particular case when they have moral or other “serious qualms” about the government’s actions, but they “rarely” seek the court’s permission to withdraw.
“For three such respected DOJ attorneys to do so simultaneously – just hours before a major filing, and without replacement by any other career lawyers other than a rookie – is simply flabbergasting.”
And it didn’t take long for Democrats to respond to the Trump administration’s new posture.
“The Trump administration is coming after the Affordable Care Act’s protections for people with pre-existing conditions and it’s time for us to draw a hard line,” Sen. Bob Casey, a Democrat up for reelection in 2018 said in a fundraising letter to supporters on Friday. “I’m mad as hell, and I’m ready to fight this with both fists up.”
Andy Kim, a former Obama administration staffer, is making coverage of pre-existing conditions and access to affordable health care a key part of his campaign against Rep. Tom MacArthur in Central New Jersey, the author of the Obamacare repeal bill that passed the House but failed in the Senate last year.
“I urge Congressman MacArthur publicly demands that President Trump defends protections for pre-existing conditions and upholds the ACA immediately, so our premiums and medical bills don’t skyrocket even further,” Kim said in a statement responding to Thursday’s decision.
And Tim Hogan, a spokesman for Health Care Voters, a Democratic group looking to mobilize voters on the health care issue, called the decision a “blatant sabotage of the Affordable Care Act” and “something Republican members of Congress will have to explain to their constituents.”
The ACA now requires insurance companies to offer coverage to everyone regardless of their medical history. Prior to the ACA, insurers often rejected applicants who were ill or had pre-existing conditions, or only offered them limited coverage. Under another provision, the community rating provision, insurers were not allowed to set premiums based on a person’s health history.
These two provisions, along with rules that allow children to stay on their parents’ health plan until they are 26 years old, have proven popular with Americans.
Republicans have tried to blunt this tactic with a revival of what launched them into power in 2010: By arguing Democrats are hellbent on taking over all aspects of the health care system.
On Friday, Attorney General Jeff Sessions addressed the administration’s decision in prepared remarks to a conservative summit in Denver.
“And the Department of Justice is ending the lawlessness that too often took place under the previous administration,” Sessions said, according to the prepared remarks.
“Late last night, we informed a Texas court that we would not be defending the constitutionality of the Obamacare mandate,” he continued. “It is a rare step but a necessary one when it comes to this monumental and historic governmental move in the American health care system.”
As the debate over the Trump administration’s decision raged, the National Republican Campaign Committee largely ignored the issue, instead noting that House Minority Leader Nancy Pelosi said a range of health care options are “on the table” if Democrats take back the House in November.
Democrats don’t mind this comparison, in part because polls have shown that not only is health care a top issue for many voters, but it’s an issue that helps Democrats.
An NBC/Wall Street Journal poll released on Thursday – before the Trump administration decision was unveiled – found health care was the top issue for all voters and that it’s an issue where Democrats have an overwhelming advantage.
Among those who said health care was the most important issue, 21% prefer GOP control of Congress, 67% Democratic control.
Also, 39% of registered voters in today’s NBC/WSJ said they are enthusiastic or comfortable with a candidate seeking to repeal Obamacare, compared to 49% who said they have reservations or were very uncomfortable with a candidate seeking to repeal the health care law.
CNN’s Sophie Tatum and Ariane de Vogue contributed to this report.