This is a joint post done in conjunction with Louise Norris and Andrew Sprung, two of my fellow health policy nerds.
On November 10, the Trump administration will ask the Supreme Court in oral argument to declare the Affordable Care Act unconstitutional – and nullify the law in the midst of a pandemic, uninsuring an estimated 23 million people. As Republicans rushed to confirm the nomination of Amy Coney Barrett to the Supreme Court, Senate Majority Leader Mitch McConnell asserted that “no one believes” the Court will strike down the law – implying, as many hard-pressed Republican incumbents have also implied, that Republicans have no wish to do so.
But ACA repeal has been Republican policy since President Obama signed the bill into law in March 2010. In 2017, a Republican House and Congress came within a whisker of repealing the ACA’s core programs, and 90% of Republicans in Congress voted for repeal. Where would be now if they had succeeded? How many more Americans would be uninsured, and what options would be available to the millions who have lost job-based coverage since the pandemic reached our shores?
Republican “health reform”: Cut ACA subsidies and Medicaid
In May 2017, the Republican House passed the American Health Care Act (AHCA). The nonpartisan Congressional Budget Office (CBO) forecast that if the bill passed,19 million fewer Americans would be insured by 2020 and 23 million by 2024. CBO projected similar coverage losses for the Better Care Reconciliation Act (BCRA), the companion Senate bill. After nine Republican senators defected to help defeat passage of the BCRA, a “skinny” repeal bill that would have opened the door to passage of a revised House bill failed by a single vote when John McCain unexpectedly turned his thumb down.
Both the AHCA and the BCRA would have sharply reduced the ACA’s premium subsidies in the individual market for health insurance and would have rendered the available coverage virtually unusable for millions of low-income enrollees by eliminating the ACA’s Cost Sharing Reduction subsidies. But both bills did their deepest damage by eliminating federal funding for the ACA Medicaid expansion, which extends Medicaid eligibility to all adult citizens and some legally present noncitizens with incomes up to 138 percent of the Federal Poverty Level (this year, that’s $1,467 per month for an individual). CBO forecast that under both bills, expansion enrollment would be wiped out, reducing Medicaid enrollment to 8 to 9 million by this year, and by 14 to 15 million as of 2024.
Both bills would also have fundamentally altered Medicaid by converting federal funding to a capped contribution that would grow more slowly than medical inflation. Under such per capita caps or block grants, states would now be bearing all pandemic and recession cost risk even as state revenues have collapsed.
The nonpartisan Center for a Responsible Federal Budget estimated that the BCRA would reduce Medicaid spending by more than $2 trillion over 20 years, progressively weakening coverage for tens of millions who were not disqualified by repeal of the ACA expansion.
After their failed repeal efforts, Republicans chipped away at the margins of the ACA’s core programs: the subsidized private plan marketplace and the Medicaid expansion. According to the federal National Health Interview Survey, the national uninsured rate has increased from an all-time low of 9.0% in 2017 to 10.3% in 2019. Still, in February 2020, just before the pandemic caused economic havoc, 12 million adult Medicaid enrollees were rendered eligible by ACA expansion criteria, and 9.2 million enrollees in the ACA private plan marketplace received federal subsidies that paid for an average of 76% of their premiums.
45 Million uninsured — and climbing
Had either Republican “repeal and replace” bill been enacted in 2017, the uninsured population by February 2020 would almost surely have risen to about 45 million, as projected by CBO – about 50 percent higher than its actual level. The pandemic would doubtless have accelerated the climb to 49-50 million uninsured that CBO projected by 2024.
Instead, when the pandemic struck and triggered tens of millions of job losses, the ACA’s core programs stood as a gap-ridden but still substantial defense against massive increases in the uninsured population. The yeoman’s work has been done by the Medicaid expansion. Medicaid eligibility is determined by current monthly income, so that someone who loses a middle class job during the pandemic may immediately qualify.
By June, according to the Center for Medicare and Medicaid Services, Medicaid enrollment had grown to 75 million — an increase of 4 million since February. Enrollment growth has continued throughout this pandemic. It is likely now stands at 78 million, about 10 percent above the February total. Among those rendered eligible by the ACA Medicaid expansion, enrollment growth is in the neighborhood of 20%. At least 14 million current Medicaid enrollees would be ineligible in a “Repeal and Replace” world.
The ACA marketplace offers more limited protection — due to both the administrative burden of verifying enrollment eligibility and the determination of subsidies by annual instead of monthly income. Still, by one estimate, marketplace enrollment is likely about 1 million higher than it would have been absent the pandemic. Regulators have prepared the marketplaces for significant new enrollment during the fall open enrollment period.
The uninsured population has doubtless increased during the months of unprecedented job loss triggered by the pandemic. But it would have risen faster and farther — and from a much higher base — had the Medicaid expansion and the current ACA marketplace been eradicated.
Even with the likely accession to the Supreme Court of Trump nominee Amy Coney Barrett, who has opined that the Supreme Court wrongly declared the law constitutional in 2012, McConnell may right in predicting that the Court will not void the entire law. But that is what the Trump administration and the 18 Republican attorneys general and governors prosecuting the suit are asking for. ACA nullification has to be regarded as the policy of a party that at its national convention declined to produce any platform other than a statement of fealty to Trump.
Andrew Sprung writes about health care policy on his blog, xpostfactoid, as well as at other publications.
Louise Norris is an individual health insurance broker who writes about health insurance and health reform at healthinsurance.org and other publications
Hunter Gathers
The entire law will be overturned by a 5-4 vote, with Roberts in the minority with Bart O’Kavanaugh’s majority opinion.
schrodingers_cat
AOC was dissing ACA again in her Vanity Fair interview. This what both the horseshoe left and right have been clamoring for.
hitless
@Hunter Gathers: I concur. The ACA is dead.
Matt McIrvin
A Democratic President and Congress in 2021 can just re-pass it with a minor patch to get around the case’s non-severability argument, right?
(This would, likely, require elimination of the Senate filibuster.)
Baud
@Matt McIrvin: Yes.
Matt McIrvin
This would seem to be a major, major argument to make in the election, though perhaps it is too technical. “Trump’s Supreme Court is going to kill millions of people’s health insurance… but we can immediately bring it back, if you let us.”
Matt McIrvin
…come to think of it, the actual ruling doesn’t come down until next year, right? In which case they could render it moot entirely.
Baud
@Matt McIrvin:
That’s essentially the argument they’re running, although not as detailed.
Baud
@Matt McIrvin:
Also correct, unless the majority wants to be spiteful and decide quickly.
different-church-lady
Well, the personal answer to the headline is: I’d have sold my house by now to pay for my five days in the hospital with supposedly non-Covid pneumonia, if that’s any help.
different-church-lady
@Baud: Why-on-earth-would-they-want-to-be-spiteful-I’ll-show-myself-out…
p.a.
He may be down in the polls now, but any day now tRumpublicans will release their currently super-secret, awesome, really fantastic, much much better than the current health insurance plan to magnificent applause and then roll to victory!???????????. ?I think I pulled a muscle laughing. Is that covered?
catclub
@Matt McIrvin: Yes, just re-establish the penalty tax as $1
better yet, 1 penny. (Keyboard has No ‘cent’ symbol like on manual typewriters!)
Benw
The damn government should just keep out of my Medicaid!
Yarrow
@Baud: I asked about this in the morning health insurance thread. Can the Supreme Court issue the ruling right away? If so, will the current Open Enrollment for 2021 be rendered invalid? If they wait and issue the ruling in 2021 in, say, July, will people on plans via the ACA be thrown off them immediately?
patrick II
@different-church-lady:
I wonder if this decision is election contingent. Trump thought he was going to win (you may not agree) when he had his justice department support this case. The Supreme court held off the decision until after the election so it wouldn’t be so much of an election issue if millions found themselves without insurance just before an election, and as it happens in a pandemic.
Now there are several cases about counting votes that are put off until after the election. Everyone seems to agree that those are election win contingent. If Donald can win with those cases, they will be decided in his favor. If not, they won’t. Could the ACA have the same contingency?
If Donald wins, ACA is repealed. If Donald loses, but the Senate holds Republican, then ???. If there is a clean Democratic clean sweep, then the law stands — What republican judge wants to give another reason to the new group in power when they are talking judicial reform.
I will note, none of the reasons given above have anything to do with the legality of the ACA. Legality is moot in this court. They would not have taken such a ridiculous case if it wasn’t.
Kent
Then we abolish the state-run Medicaid program and lower the enrollment age for Medicare from 65 down to birth. So red states can’t keep fucking with Medicaid like they do now.
And keep the Medicare Advantage program for people who want to go out and buy their own private insurance. But don’t subsidize it so that private insurance companies have to compete with Medicare on equal footing. If they can do better then fine, I’m all for it.
If Medicare for All is the only constitutional way to do health care then fine. Let’s do it. And I’m looking forward to hearing the argument for how Medicare is constitutional if you are age 65 but not if you are age 64 or 58 or 40.
Done.
Dan B
Thanks for quantifying the impacts. Now we can speculate on the “reasoning” of our superiors.
Speaking of which where are the pollsters of these well to do, supremely hard working, “superiors”? The groupthink seems to lack logical coherence.
Baud
@Yarrow:
Nothing prevents them from deciding right way, but if they do it quickly it’d be pretty transparent what the are doing.
I’m not sure a decision would invalidate existing insurance contracts before the expire.
ETA: corrected
Yarrow
@Baud: Thanks. I would think invalidating a current insurance contract might be hard, but who knows anymore. If the court wants to overturn the ACA they might just go ahead and do it right away. You know, “to give Congress as much time as possible to do something” or some bs.
WaterGirl
@catclub: I believe there is a cent symbol in the special characters option in the comment editor.
Dan B
It also seems that ACB possibly, and Moscow Mitch assuredly, want to eliminate Medicare and then every New Deal program. They want to put churches in charge of “charity”. And they believe that the poors don’t sufficiently appreciate the
sternbenevolent hand of their betters. These seem to be third rail issues. They would seriously impact the non college educated white males who make up a chunk of the base. It will be interesting to watch the sparring between ACB and Roberts on these ideological / political battles.Kent
What I actually think is that they will chip away on a bunch of parts of the ACA like, for example, the contraception mandate as an unconstitutional infringement against “religious rights”
But leave a crappy shell in place that is increasingly unpopular because it works worse and worse. Pretty much like they have done with abortion rights over the decades. They are playing a long game.
I don’t expect a 100% blanket overturn of the entire ACA because that would be a red flag open invitation to expand SCOTUS in response. They will push just far enough to give red meat to conservatives but stop short of doing something so flagrant it will necessitate court expansion.
At least that’s my guess.
LongHairedWeirdo
So, what? Mitch McConnell is saying that the AGs are filing a frivolous lawsuit? That the White House signed on to a frivolous lawsuit? His office has filed an amicus brief about how *terrible* the lawsuit is on all merits, in every way?
I think it’s pretty clear I could never be a political reporter, because there’s only two responses to that: “what a sack of (expletive deleted)!”; or, “BWAHAHAHAHAHA! Good one, Moscow!”
Mallard Filmore
Hi David, if this posting is a copy for a formal publication, I suggest a minor edit:
LongHairedWeirdo
@Matt McIrvin: You misspelled “absolutely, positively, with 0 chance of doubt” – that’s not spelled “l-i-k-e-l-y”. HTH.
(Kidding, of course – not criticizing, for sure!)
Ruckus
@Kent:
I don’t think that they will do anything half ass, they will be true to their base principles and go all ass.
If they are going to lose the executive branch and the senate they have nothing to lose going for broke, and probably feel that the USSC will save them. Having gone all in with shitforbrains, what real choice do they have to get their shit policies?
J R in WV
@Kent:
And the day after that happens, someone will sue to have Medicare declared unconstitutional, because poor people aren’t entitled to health care if the government is involved.
J R in WV
@Kent:
Do you mean to tell me that Obamacare forces people who don’t want it to acquire contraceptives??? Not so fast, he says!
It took me a while to figure out who ACB was… No, that’s AOC I’m thinking of, nothing to do with Moscow Mitch / deranged turtle. Oh, yeh, that new Supreme Court girl. The one who doesn’t want to tell us what she believes in …
No telling what she’s going to do now that no one can tell her what to do. She may turn into a libertarian overnight. Or even an anarchist… What would her husband think if she turned into a liberal/left wing jurist? Nothing he could do to stop her, after all. Life time appointment!
debbie
@Hunter Gathers:
Can’t wait to see how irrelevant his written opinion is. //
Bob Hertz
First of all, both Amy Barrett and Kavanaugh are clearly on record stating that part of a law can be overturned without the whole law being invalidated. Gorsuch and Alito are no angels, but they are not just order-takers who depend on right-wing campaign contributions.
I always try to “follow the money” in analyzing these events. There is a national group called RAGA that does funnel campaign contributions to Republican candidates for Attorney General nationwide.
However, I am still not sure about the real goal of all these efforts to repeal the ACA,
I cannot think of any corporations who stand to make billions from repeal. The major health insurance companies have never made big money in the under-65 individual market, with or without underwriting. A few shady companies like Golden Rule made big money on their short term insurance, so I guess they would favor repeal.
The ACA did add two taxes on the rich. These taxes only raise about $30 billion a year, but maybe there are some very angry billionaires for whom that is enough to fund the cause of repeal.
I suspect though that the major driving force for repeal is just opposition to the growth of the federal government. The apostles of this cause are fully able to look past the suffering that ACA repeal would cause.
I welcome any comments from the authors of this excellent piece.
T