Attorney General William Barr made a last-minute push Monday to persuade the administration to modify its position in the Obamacare dispute that will be heard at the Supreme Court this fall, arguing that the administration should pull back from its insistence that the entire law be struck down.
With a Wednesday deadline to make any alterations to its argument looming, Barr made his case in a room with Vice President Mike Pence, White House counsel Pat Cipollone, members of the Domestic Policy Council, press secretary Kayleigh McEnany and several other officials. The meeting ended without a decision and it was not immediately not clear if any shift in the Trump administration’s position will emerge.
Barr and other top advisers have argued against the hard-line position for some time, warning it could have major political implications if the comprehensive health care law appears in jeopardy as voters head to the polls in November.
According to four sources familiar with the meeting, Barr argued for modifying the administration’s current stance to preserve parts of the law, rather than fully back the lawsuit filed by a group of Republican states. As it stands now, the Trump administration’s position seeks to invalidate the entire Affordable Care Act, signed by President Barack Obama in 2010 and commonly known as Obamacare.
Barr and Health and Human Services Secretary Alex Azar have argued against supporting invalidating the law in full, engaging in a heated debate on this point with then-acting White House chief of staff Mick Mulvaney and policy officials allied with him, CNN reported last year. But Barr and others have recently brought an additional dimension to their efforts, highlighting the coronavirus pandemic that has swept the nation. If the justices were to accept the Trump administration position, its decision could cause substantial disruptions to the health care of millions of Americans and cause the uninsured rate to spike.
The Affordable Care Act is expected to serve as an important safety net for the millions of people who lose their jobs and work-based health insurance amid the pandemic. If the unemployment rate hits 15%, nearly 17.7 million Americans could lose their employer-sponsored policies, according to a recent Urban Institute report. More than 8 million people could enroll in Medicaid, particularly in states that expanded the program to more low-income adults under the sweeping health care law. Also, more than 4 million people could obtain coverage through the Affordable Care Act exchanges or other private policies, leaving just over 5 million uninsured, the report found.
Even before the pandemic, more than 11.4 million people signed up for Obamacare coverage for 2020 and roughly 12.5 million were enrolled in Medicaid expansion.
Trump’s domestic policy aides have resisted any change in the Trump administration’s legal arguments at this point, contending that the legal position should move forward without changes because Republicans have campaigned on repealing Obamacare for a decade. Those aides have brushed off the possibility of any new political repercussions, and pushed back on Barr in the meeting Monday.
The Justice Department declined to comment.
The divide has been a long-running battle inside the administration, but it has a new sense of urgency because the administration is up against a deadline on Wednesday if it wants to modify its argument.
The administration currently contends that the individual insurance requirement is unconstitutional, and because that mandate is tied to other provisions of the law, the entire Affordable Care Act must fall. If the administration is going to back off that absolute position, it would likely submit a filing to the Supreme Court within the next 48 hours, based on the court’s current briefing schedule for the dueling parties. Otherwise, the administration’s brief would not be due to the high court until June.
Barr has long favored tempering the administration’s position, which has shifted multiple times since the lawsuit began in early 2018. The administration argued that only two key provisions that protect Americans with pre-existing conditions should fall, but the rest of the law could remain. In a dramatic reversal soon after Barr became attorney general in early 2019, the Justice Department said the entire Affordable Care Act should be invalidated. Several months later, the administration argued before a federal appeals court that the law should only be struck as it applies to the coalition of Republican-led states that brought the challenge.
The argument that the entire law should be struck down already might have been a tough one to make to a Supreme Court majority that has twice rejected broad-scale challenges.
After a decade, the Affordable Care Act has affected nearly every aspect of the health care system. It required all Americans obtain coverage and created a marketplace for purchasing insurance. It also expanded Medicaid for poor people and protected diabetics, cancer patients and other individuals with pre-existing conditions from being denied coverage or charged higher premiums.
The current Supreme Court dispute began when Texas and other Republican-led states sued after the Republican-led Congress in 2017 cut the tax penalty for those who failed to obtain insurance to zero. Because the individual mandate is no longer tied to a specific tax penalty, the states argue, it is unconstitutional. They also say that because the individual mandate is intertwined with a multitude of ACA provisions, invalidating it should bring down the entire law, including protections for people with preexisting conditions.
On the other side are California and other Democratic-led states and the now Democratic-controlled US House of Representatives. The Affordable Care Act has remained in effect through the litigation.
The Supreme Court agreed earlier this year to take up the ACA dispute. The case is likely to be heard in the fall, but a decision would not be expected until 2021, after the November presidential election.
The case will mark the third time that the Supreme Court takes up a major ACA dispute. In 2012, the justices upheld the law, by a 5-4 vote, with Chief Justice John Roberts casting the deciding vote with the four liberal justices over the dissent of four conservatives. Roberts grounded his opinion in Congress’ taxing power.
This story has been updated to include additional background information and reflect that the Justice Department declined to comment.