The Trump Administration has opposed the Affordable Care Act (Obamacare) for years, having failed multiple times to repeal the law. Following the Trump led reduction of the penalty of the individual mandate through the Tax Cuts and Jobs Act (TCJA), several states launched a Trump supported lawsuit alleging that the individual mandate was no longer a tax and violated the constitution.
The Trump Administration has consistently opposed the Affordable Care Act and has sought to dismantle key components including protections for those with pre-existing conditions.
Despite his campaign promises to lower the cost of prescription drugs, Trump has failed to successfully drive drug costs down.
Donald Trump said he would cut surprise medical billing, but his Medicare-focused Executive Order could subject more seniors to surprise bills.
The Trump Administration Supported A Lawsuit That Could Invalidate The Affordable Care Act In Its Entirety. According to Politico, “A panel of federal appeals judges aggressively questioned whether Obamacare can survive during Tuesday afternoon oral arguments in a case that could upend the 2010 health care law. Two Republican appointees on the three-judge panel frequently interrupted attorneys to question whether the Affordable Care Act’s individual mandate is unconstitutional and if not whether the entire law could stand without it. The ACA’s future appeared murky after two hours of oral arguments at the 5th U.S. Circuit Court of Appeals, but it’s not clear if the judges were ready to uphold a federal judge’s earlier decision invalidating the law. The lawsuit, which is supported by the Trump administration, puts at risk coverage for 20 million people covered by the ACA, as well as the law’s popular protections for insurance protections. The closely watched case is expected to eventually move to the Supreme Court, which has saved the law twice already, and could ultimately decide Obamacare’s fate next year in the height of the 2020 campaign.” [Politico, 7/9/19]
February, 2018: 20 States Led by Texas And Two Plaintiffs Sued The Federal Government Seeking To Strike The Entirety Of The ACA. According to the Kaiser Family Foundation, “A group of 20 states, led by Texas, sued the federal government in February 2018, seeking to have the entire ACA struck down (the “state plaintiffs”).3 These states are represented by 18 Republican attorneys general and 2 Republican governors. After Democratic victories in the 2018 mid-term elections, two of these states, Wisconsin and Maine, withdrew from the case in early 2019, leaving 18 states challenging the ACA on appeal (Figure 1).4 Two individuals joined the lawsuit in the trial court in April 2018, as plaintiffs challenging the ACA.5 These plaintiffs are self-employed residents of Texas who claim that the individual mandate requires them to purchase health insurance that they otherwise would not buy, although there is no penalty if they fail to buy coverage.” [KFF, 3/10/20]
The Trump Administration Argued That TCJA Invalidated The Constitutionality Of The Individual Mandate. According to the Kaiser Family Foundation, “When the case was argued in the trial court, the federal government did not defend the constitutionality of the ACA’s individual mandate. Instead, the federal government agreed with the state and individual plaintiffs that the individual mandate is no longer constitutional under Congress’s taxing power as a result of the TCJA provision that set the financial penalty at zero.6 It is unusual for the federal government to take a position that does not seek to uphold a federal law.” [KFF, 3/10/20]
The Texas Trial Court Ruled That The Mandate, Allowed To Exist Because It Was A “Tax,” Was No Longer A Tax Because The Penalty For Noncompliance Was Reduced To $0 In The 2017 Tax Cuts And Jobs Act. According to the Kaiser Family Foundation, “In the 2017 Tax Cuts and Jobs Act (TCJA), Congress set the shared responsibility payment at zero dollars as of January 1, 2019. According to the Texas trial court, this action ‘compels the conclusion’ that the individual mandate ceases to be a constitutional exercise of Congress’ taxing power because the associated financial penalty no longer ‘produces at least some revenue’ for the federal government.” [Kaiser Family Foundation, 7/3/19]
Both Conservative And Liberal Legal Experts Criticized The GOP’s Argument Supporting The Elimination Of The ACA Based On The Repeal Of The Individual Mandate. According to The Hill, “The Trump administration and the GOP-led states argue that ObamaCare’s mandate to have coverage is unconstitutional and that therefore the entirety of the rest of the law should be struck down too. Legal experts in both parties have expressed deep skepticism of this argument, noting that Congress’s intent in 2017 when it repealed the financial penalty for violating the mandate was clearly to repeal only that provision and leave the rest of the law standing. The health insurers said that ObamaCare markets have ‘remained stable’ in 2020 even without the mandate, arguing that shows the mandate is not essential to the rest of the law.” [Hill, 1/15/20]
The U.S. Court Of Appeals For The 5th Circuit Heard Oral Arguments In Texas V. U.S., A Case In Which The Lower Court Found The Affordable Care Act’s Individual Mandate, And Therefore The Entire Act, To Be Unconstitutional. According to the Kaiser Family Foundation, “On July 9, 2019, the U.S. Court of Appeals for the 5th Circuit will hear oral argument in Texas v. U.S., the next round of litigation challenging the Affordable Care Act (ACA). The appeals court is reviewing a federal trial court’s decision that the ACA’s minimum essential coverage provision (known as the individual mandate) is unconstitutional and, as a result, requires the entire ACA to be overturned. The individual mandate provides that most people must maintain a minimum level of health insurance coverage; those who do not do so must pay a financial penalty (known as the shared responsibility payment) to the IRS. The individual mandate was upheld as a constitutional exercise of Congress’ taxing power by a five member majority of the U.S. Supreme Court in NFIB v. Sebelius in 2012.” [Kaiser Family Foundation, 7/3/19]
5th Circuit Found That The Individual Mandate Was Unconstitutional As Amended By TCJA’s Removal Of Financial Penalty For Flouting Insurance Mandate. According to the Kaiser Family Foundation, “B) The individual mandate is unconstitutional after the TCJA set the financial penalty at zero. The 5th Circuit decided that the individual mandate as amended by the TCJA is unconstitutional. The court agreed with the state and individual plaintiffs and the federal government’s assertion that the requirement to produce some revenue is “essential” to the Supreme Court’s earlier finding in NFIB that the individual mandate could be saved as a valid exercise of Congress’s power to tax.20 Without that feature, the mandate is a command to purchase health insurance, which as the Supreme Court held in in NFIB, is an unconstitutional exercise of Congress’ power to regulate interstate commerce.” [KFF, 3/10/20]
5th Circuit Found That The Trial Court Had Incorrectly Decided Severability, That The Trial Court Should Have Focused On Congress’ Intent In 2017 With Passage Of TCJA Not ACA Passage In 2010. According to the Kaiser Family Foundation, “C) The trial court’s analysis about whether the individual mandate is severable from the rest of the ACA was incomplete. The 5th Circuit sent the case back to the trial court for additional analysis about which ACA provisions should survive without the individual mandate. The trial court incorrectly focused on the intent of Congress in 2010 when passing the ACA and instead should have considered Congress’ intent when enacting the TCJA and setting the shared responsibility payment at zero in 2017.23 In so doing, the trial court should “employ a finer-toothed comb. . . and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the individual mandate. . . us[ing] its best judgment to determine how best to break the ACA down into constituent groups, segments, or provisions to be analyzed.”24” [KFF, 3/10/20]
SCOTUS Granted California’s Petition For Certiorari On Whether Texas And Plaintiffs Have Standing, Whether TCJA Rendered The Individual Mandate Unconstitutional, And The Severability Of The Individual Mandate From The ACA At Large. According to the Kaiser Family Foundation, “The Supreme Court has agreed to review three legal questions in the case: (A) whether Texas and the individual plaintiffs have standing to bring the lawsuit to challenge the individual mandate; (B) whether the TCJA rendered the individual mandate unconstitutional; and (C) if the mandate is unconstitutional, whether the rest of the ACA can survive. The Court granted California’s cert petition, which asked the Court to review these three issues.27 While Texas argued that the Court should not grant cert and instead should wait for the lower courts to finish reviewing the case,28 Texas filed a conditional cross-petition for cert, arguing that if the Court granted California’s cert petition, it also should review whether the district court correctly concluded that the individual mandate is not severable from the rest of the ACA and whether the district court’s judgment declaring that the entire ACA is invalid properly applied nationwide. The first issue raised by Texas is essentially the same as the third issue raised by California. The second issue raised by Texas addresses the federal government’s argument in the 5th Circuit that any injunction prohibiting enforcement of the ACA should apply only in the plaintiff states.” [KFF, 3/10/20]
The Supreme Court Requested The Trump Administration And Republican State Leadership Respond To A Request From Democratic Attorneys General Seeking To Expedite The Obamacare Case Hearings. According to Politico, “The high court Monday afternoon asked the Trump administration and Republican-led states challenging Obamacare to quickly respond to the request from Democratic attorneys general to fast track the case, POLITICO’s Susannah Luthi reports. The case — which could determine the fate of the ACA — is set to stretch past the November election if the court doesn’t expedite the hearing as Democrats have requested. Five Supreme Court justices are needed to speed review of a case. A high court ruling on Obamacare later this year could intensify the politics of the lawsuit in the ramp-up to November’s presidential election. The red states have signaled that they’re in no rush to speed the case. […] The Justice Department and red states have until 4 p.m. on Friday to respond to Democrats’ petition, the court said.” [Politico, 1/7/20]
Trump Administration Opposed Democrat Motion To Expedite SCOTUS Review. According to Politico, “The court's one-sentence order only said the justices would not take up the case in an unusually rapid order, and it did not rule out full review of the case at a later date. In deciding to immediately stay out of the fray, the justices sided with the Trump administration and group of red states leading the challenge to Obamacare. They opposed an immediate Supreme Court review of the case, arguing that there was no "emergency," even as Democrats argued that prolonging uncertainty around Obamacare harms the millions of people who rely on the law for insurance. It could take years for lower courts to resolve the lawsuit.” [Politico, 1/21/20]
The Supreme Court Denied The Joint Requests Made By Democratic States To Expedite The Obamacare Hearing Prior To The 2020 Election. According to Politico, “The Supreme Court on Tuesday rejected Democrats’ plea to consider a high-stakes legal challenge that could kill Obamacare, punting a resolution in the politically fraught case until after the presidential election. The decision deals a blow to Democrats’ hopes to elevate the issue in 2020, but it will come as a relief to President Donald Trump and Republicans, who’ve been wary of the lawsuit’s potential to scramble their election hopes. A coalition of blue states and the House of Representatives, which are defending the Affordable Care Act in the lawsuit, had pressed the high court to intervene after a federal appeals court last month refused to rule on the law’s constitutionality and sent the case back to a federal judge in Texas who had earlier issued a ruling knocking out the entire law. Story Continued Below The court’s one-sentence order only said the justices would not take up the case in an unusually rapid order, and it did not rule out full review of the case at a later date.” [Politico, 1/21/20]
The Affordable Care Act Requires All Individual Marketplace Plans To Cover Treatment For Pre-Existing Conditions And Prohibits Insurers From Rejecting Or Charging More To Applicants With Pre-Existing Conditions. According to Healthcare.gov, “All Marketplace plans must cover treatment for pre-existing medical conditions. - No insurance plan can reject you, charge you more, or refuse to pay for essential health benefits for any condition you had before your coverage started. - Once you’re enrolled, the plan can’t deny you coverage or raise your rates based only on your health. - Medicaid and the Children’s Health Insurance Program (CHIP) also can’t refuse to cover you or charge you more because of your pre-existing condition.” [Healthcare.gov, accessed 7/11/19]
If The ACA Is Ruled Unconstitutional, It Would Affect Protections For People With Pre-Existing Conditions, Medicaid Coverage, Subsidies That Help People Afford Insurance, And Other Popular Provisions. According to the Associated Press, “With health insurance availability, cost and coverage on the line for millions of Americans, a federal appeals court seemed inclined Tuesday to rule that the core provision of President Barack Obama’s signature health care law is unconstitutional. […] The hearing marked the latest development in a 2018 lawsuit by 18 Republican-leaning states claiming that the absence of a tax converts the law into an unconstitutional directive to U.S. citizens to buy a product. A lower court judge ruled in December that it did, and that the entire law must fall as a result. That includes popular provisions such as protection for pre-existing conditions. […] But Douglas Letter, an attorney for the House, argued that eliminating the tax penalty didn’t undermine the law’s constitutionality. And he said Supreme Court precedent dictates that the courts should strive to uphold as many of the law’s provisions as possible. ‘Remember that the kinds of provisions here that would be struck down if there’s no severability are, for example, the provision about when you can be denied or charged more insurance for preexisting conditions,’ Letter said. ‘The provision about children can be kept on parents’ insurance until they’re 26 ...’ The ultimate outcome will affect protections for people with pre-existing conditions, Medicaid expansions covering roughly 12 million people, and subsidies that help about 10 million others afford health insurance.” [Associated Press, 7/9/19]
Trump Falsely Claimed To Have Saved Pre-Existing Conditions Coverage Despite His Repeated Support For Congressional Bills That Would Have Eliminated Or Significantly Reduced Pre-Existing Condition Protections. According to The Hill, “President Trump on Monday lashed out at former New York City Mayor and Democratic presidential hopeful Michael Bloomberg, defending his administration’s health care record. ‘Mini Mike Bloomberg is spending a lot of money on False Advertising,’ Trump tweeted. ‘I was the person who saved Pre-Existing Conditions in your Healthcare,’ he continued, adding that he would ‘always protect your Pre-Existing Conditions, the Dems will not!’ The tweets from Trump come as Bloomberg, a billionaire businessman, has spent more than $125 million dollars in ads. It was unclear specifically what Trump was responding to, but Bloomberg does have an ad criticizing Trump for ‘threatening coverage for millions of Americans’ by trying to repeal ObamaCare. Despite Trump’s claim that he ‘saved’ coverage for people with pre-existing conditions, he backed a bill that Republicans passed through the House in 2017 that would have let states to get waivers to allow people with pre-existing conditions to be charged significantly higher premiums, something that is banned under ObamaCare.” [Hill, 1/13/20]
530,000 Annual Personal Bankruptcies Were Tied To Medical Issues, Representing 66.5 Percent Of Bankruptcies. According to CNBC, “A new study from academic researchers found that 66.5 percent of all bankruptcies were tied to medical issues —either because of high costs for care or time out of work. An estimated 530,000 families turn to bankruptcy each year because of medical issues and bills, the research found.” [CNBC, 2/11/19]
NBC News: “President Donald Trump Made Reducing Drug Prices A Key Promise During His Election Campaign, Repeatedly Accusing Drugmakers Of ‘Getting Away With Murder.” According to NBC News, “President Donald Trump made reducing drug prices a key promise during his election campaign, repeatedly accusing drugmakers of ‘getting away with murder.’ At the end of May, he promised that drug companies would be announcing ‘massive’ voluntary drug price cuts within two weeks. That hasn’t happened, and an Associated Press analysis of brand-name prescription drug prices shows that it’s been business as usual for drugmakers, with far more price hikes than cuts. The number of increases slowed somewhat and were not quite as steep as in past years, the AP found. Over the first seven months of the year, there were 96 price hikes for every price cut, the AP found. Health Secretary Alex Azar, the administration’s point man for efforts to lower drug prices, conceded in a recent AP interview that it will be a while before drug prices fall. He noted the complexity of the medicine market and its incentives for drugmakers to boost prices so they and middlemen make bigger profits.” [NBC News, 9/25/18]
February 2017 – February 2020: Prescription Drugs Prices Have Increased 11.6 Percent, Almost Twice As Much As Consumer Prices For Urban Consumers Overall. According to the St. Louis Fed, the Producer Price Index for Pharmaceuticals for Human Use and the Consumer Price Index for All Urban Consumers were listed at 100 and 100.1 respectively in February 2017. In February 2020, the Producer Price Index for Pharmaceuticals for Human Use was listed at 111.6 and the Consumer Price Index for All Urban Consumers was listed at 106.3. [Federal Reserve Bank of St. Louis, Accessed 3/6/20]
February 2017 – February 2020: Producer Price Index For Insulin And Other Antidiabetes Product Prices Increased By 17 Percent. [Federal Reserve Bank of St. Louis, Accessed 3/10/20]
AP Fact Check: Despite Trump’s Claims, Drug Prices Increased In 2018. According to the Associated Press, “A look at one of President Donald Trump’s statements from his State of the Union address on Tuesday night and how it compares with the facts: TRUMP: ‘Already, as a result of my administration’s efforts, in 2018 drug prices experienced their single largest decline in 46 years.’ THE FACTS: Trump is selectively citing statistics to exaggerate what seems to be a slowdown in prices. A broader look at the data shows that drug prices are still rising, but more moderately. Some independent experts say criticism from Trump and congressional Democrats may be causing pharmaceutical companies to show restraint.” [Associated Press, 2/05/19]
2019: More Than 3,400 Drug Prices Were Boosted By Average Of 10.5%, 5 Times Inflation. According to CBS News, “Price hikes on prescription drugs are surging in 2019, despite vows from lawmakers and the Trump administration to rein in pharmaceutical costs. So far in 2019, more than 3,400 drugs have boosted their prices, a 17% increase compared with the roughly 2,900 drug price increases at the same time in 2018, according to a new analysis by Rx Savings Solutions, a consultant to health plans and employers. The average price hike for those 3,400 drugs stands at 10.5%, or about 5 times the rate of inflation, the study found. About 41 drugs have boosted their prices by more than 100%, including one version of the antidepressant fluoxetine -- also known as Prozac -- whose cost has surged 879%, Rx Savings Solutions said.” [CBS News, 7/1/19]
January, 2020: 460 Prescription Drugs Increased By An Average Of 5.2 Percent. According to AARP, “Retail prices for 460 prescription drugs are increasing by an average of 5.2 percent in 2020 — more than double the projected rate of inflation for this year, according to data analyzed by 3 Axis Advisors, a health care research firm. The increases disclosed by 114 companies, as of Jan. 6, come as federal and state lawmakers, and the president, say they are determined to find ways to lower the cost of lifesaving medications that millions of Americans rely on each day. The 3 Axis analysis also tracks with Price Watch reports AARP has produced as part of its Stop Rx Greed campaign to call on elected officials to take action on runaway drug prices.” [AARP, 1/6/20]
Trump Backed Away From His Pledge To Support Negotiations With Pharmaceutical Companies Over The Price Of Prescription Drugs For Medicare Recipients. According to The Hill, “President Trump is backing off his 2016 campaign pledge to negotiate drug prices for Medicare with pharmaceutical companies, drawing fire from Democrats after months of talks on the issue with Speaker Nancy Pelosi (D-Calif.). During his campaign, Trump famously broke with Republican orthodoxy with his support for having the government negotiate lower drug prices. ‘When it comes time to negotiate the cost of drugs, we are going to negotiate like crazy,’ Trump said in New Hampshire in early 2016. Pelosi’s staff spent months over the course of this year trying to get White House support for her measure to allow the government to negotiate prices for up to 250 drugs per year, with tough financial penalties for companies that refused to come to the table. But after months of holding his fire, Trump is now publicly bashing Pelosi’s bill. And while Trump still talks about the need to lower drug prices in general, he has not proposed an alternative drug price negotiation plan of his own.” [The Hill, 11/24/19]
After Rejecting Speaker Pelosi’s Medicare Price Proposal, The Trump Administration Sought To Quell Criticism About The Rising Cost Of Prescription Drugs By Supporting A Senate Bill Which Did Not Include Medicare Bargaining Authority, But Proposed That Drugmakers Pay Rebates If They Raised Prices Too High. According to The Washington Post, “The White House is ramping up its push to get a bill through Congress that curbs prescription drug costs, feeling a new urgency as the impeachment investigation advances amid the 2020 election campaign. The effort has progressed beyond anything seen in years, says President Donald Trump’s top domestic policy adviser. ‘This is a once-in-a-generation opportunity to confront these issues in a nonideological fashion,’ adviser Joe Grogan said in a recent session with reporters. ‘Unfortunately,’ Grogan explained, ‘there are some current complications.’ After months of dialogue, the White House and House Speaker Nancy Pelosi have parted ways on Medicare price negotiations that Pelosi advocates and Trump — unlike most Republicans — once supported in principle. Instead Trump is backing a compromise bipartisan bill in the Senate, which does not give Medicare bargaining authority, but forces drugmakers to pay rebates if they raise prices too high.” [Washington Post, 11/18/19]
Coalition Against Surprise Medical Billing: Americans Make About 137 Million Emergency Room Visits Per Year. “At Least 1 In 6 Patients” With Health Insurance Will Receive A Surprise Medical Bill. According to Coalition Against Surprise Medical Billing, “For example, every year, Americans make about 137 million visits to emergency rooms in the United States. At least 1 in 6 patients who have health insurance will receive a surprise medical bill from a provider or specialist who treated them. Importantly, not all doctors or local hospitals are the culprits behind surprise medical bills. The real issue is when clinical specialists or providers choose not to participate in health insurance providers’ networks – or if they do not meet the standards for inclusion in a network – and can then demand a blank check from patients for their services. These specialty providers are likely to charge substantially more than their peers in other specialties, not accept private insurance, and are not actively chosen by patients. Studies have found that surprise medical bills are most likely to come from emergency medicine physicians, anesthesiologists, radiologists, and pathologists.” [Coalition Against Surprise Medical Billing, 1/28/20]
2019: Trump Said He Would Send Congress A Set Of Principles That Aimed To End Surprise Medical Billing. According to CNN, “The President announced on Thursday that he’s sending a set of principles to Congress that aims to end patients’ responsibility for big charges when they unknowingly are treated by out-of-network doctors or hospitals, often in an emergency situation. ‘In emergency care situations, patients should never have to bear the burden of out-of-network costs they didn’t agree to pay,’ Trump said at press conference Thursday, standing with a family that was billed nearly $18,000 for a urine drug test that would have carried an in-network charge of just $101. ‘No family should be blindsided by outrageous medical bills.’” [CNN, 2/9/19]
Trump Stated He Was Directing A Bipartisan Group Of Lawmakers To Draft Legislation To Relieve Surprise Billing, But Individually Attacked House Democrats Despite Claiming To Want Their Participation. According to New York Times, “President Trump said on Thursday that he was directing a bipartisan group of lawmakers to create legislation that would provide relief for people who were surprised by bills they receive from out-of-network health care providers after both emergency and scheduled medical visits. During a rambling 45-minute speech that veered into matters of foreign policy and his anger over the special counsel’s report, Mr. Trump pushed for a measure that he said would be bipartisan, even as House Democrats — some of whom the president also attacked by name — took up legislation to fortify a law he reviles, the Affordable Care Act. ‘We are determined to end surprise medical billing,’ Mr. Trump said of the practice, which occurs when a doctor is unexpectedly not part of an insurance network. ‘We are going to hold insurance companies and hospitals totally accountable.’” [New York Times, 5/9/19]
Trump’s Medicare Advantage Executive Order Further Empowered Medical Service Providers To Opt Out Of Medicare Which Potentially Exposed Seniors With Surprise Medical Bills. According to NPR, “Vowing to protect Medicare with ‘every ounce of strength,’ President Trump spoke last week to a cheering crowd in Florida. But his executive order released shortly afterward includes provisions that could significantly alter key pillars of the program by making it easier for beneficiaries and doctors to opt out. The bottom line: The proposed changes might make it a bit simpler to find a doctor who takes new Medicare patients, but it could lead to higher costs for seniors and potentially expose some to surprise medical bills, a problem from which Medicare has traditionally protected consumers.” [NPR, 10/8/19]