By now everyone has learned the news that after 17 days of massive effort to try and force it through the legislature in the dead of night the Republicans have given up on their godawful attempt to repeal and replace Obamacare, and have accepted that Obamacare is now the “law of the land.” Having made no effort at all to reach out to Democrats, and after trying to push it through the Senate using a reconciliation process that was explicitly designed (and admitted) to negate Democrat votes, Trump’s first act of contrition for his and Paul Ryan’s failure was to blame the Democrats for not working with him. He went on to repeat the lie that Obamacare is “exploding” (it’s probably not) and openly admitted that he is going to try and hasten its collapse through executive action, following the logic that a program initiated by Democrats that is screwed into the ground by a Republican government will somehow be seen to be the Democrats’ fault.

Trump initiated this process of screwing Obamacare on his first day in office, when he passed a notoriously vague executive order that instructed all responsible departments to not comply with the details of the law to the extent they could legally get away with. A lot of people were duly concerned about this, because there are a lot of aspects of Obamacare that rely on administrative guidance that can be modified by the government in power. So this week’s New England Journal of Medicine has a short editorial by Jost and Lazarus about whether Trump can actually successfully undermine the workings of the act through administrative action alone. The two authors appear to be lawyers, one with a connection to the Constitutional Accountability Center, which supports the cause of “progressive constitutionalism” (which appears to be the idea that the Constitution is a living document whose interpretation can change over time), so presumably their understanding of constitutional law is fairly good.

The authors point out that reaction to Trump’s executive order ranged from fear to snorts of derision, and proceed to show at least one way in which it has failed bigly. One of the big fears expressed in initial response to the order was that the Inland Revenue Service (IRS) would stop collecting taxes it is required to under the “mandate”, the unpopular part of the law which punishes through the tax system anyone who does not purchase insurance. This was probably Trump’s intention in passing the executive order, but it turns out the IRS ignored him: it admitted on February 15th (a month after the order was signed) that it was still collecting mandate taxes, and that it’s sole response to the order has been to shelve a planned crackdown on tax evasion related to the mandate.

The authors point out why this should be unsurprising: government agencies are required to enforce the laws of the land, and there is a long-standing history of jurisprudence forcing them to. They point out that in fact

it is one thing to delay temporarily a legal requirement or to phase in a new law to facilitate adjustments by affected people or entities; it is quite another to refuse outright to enforce a law already in force, with the aim and effect of undermining that law. The Supreme Court has said that courts may step in to correct any such “abdication” of the executive branch’s duty to faithfully execute the law.

Apparently the highest court in the land has built up a body of precedent which requires government agencies to enforce government law, and the authors seem quite confident that if agencies don’t do this, court action would likely force them to. They go further than this, though, considering the hypothetical case in which the IRS bends the definition of “financial hardship” sufficiently to enable anyone affected by the mandate to be exempted from it on the basis of “financial hardship” (apparently some devious Republicans had considered this oily move). They write:

In a critical 2015 Supreme Court case upholding nationwide availability of ACA “premium assistance” tax credits for eligible low-income insurance purchasers, Chief Justice John Roberts held that courts and agencies must interpret and apply individual provisions of a law — indeed, of the ACA in particular — so as to further its overall “legislative plan.” Roberts concluded: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. . . . [W]e must interpret the Act in a way that is consistent with the former, and avoids the latter.”

This might seem quite reasonable to outsiders, but apparently in America the idea that government agencies must act according to the legislative intention of the law of the land is novel and requires clarification from the Supreme Court.

(Also note that this statement was made by justice John Roberts, a conservative judge appointment by Bush Senior, not one of those quisling liberals who think all toilets should be unisex because they’re radical feminists!)

In conclusion the authors are unconvinced that Obamacare can be undone by administrative action alone, though they concede it could become less generous and function less smoothly as a result of meddling. But the Republicans need to be careful here, since administrative overreach in this regard is likely to be punished by the courts, stacking further humiliations on Trump’s already woeful record of mistakes and inactions. Worse still, there is a big and growing split in the Republican movement over Obamacare, and signs that some of the 19 states that resisted the Medicaid expansion are going to cave, further entrenching Obamacare’s role. In particular Kansas, whose economy has been completely wrecked by Republican Crazy Caucus economic ideals, is desperate for money and is very close to taking the Medicaid expansion because balancing the budget will require the extra money. Virginia’s governor is also trying to get that state covered, and activists are using failure to take the expansion and its associated funds as a stick to beat Republicans locally. With Trump’s popularity nosediving, the collapse of the American Health Care Act showing the impossibility of reform through Congress, and many of the areas that voted for Trump most vulnerable to executive action, it is unlikely that vulnerable Republicans are going to want to push this issue at a local level. So the conclusion of this opinion piece in the NEJM is that while Obamacare won’t work as well under Trump, it is unlikely to be seriously damaged. And the longer it continues to function, the harder it will be for Republicans to repeal it or to continue to even talk about it. My guess is that over the next two years – and especially as the mid-term elections approach and it begins to look like a wave election is going to swamp a lot of Republican congress people – we will see more states take the Medicaid expansion, and moderate Republicans begin to talk strong talk about repairing the existing law rather than destroying it. Whether any of them survive the mid-terms will be another question entirely – but if they don’t, they will be replaced by angry Democrats, raising the possibility that after a wave election in 2019 the Dems might be able to force a veto-proof bill across Trump’s desk, requiring him to sign a public option into law.

Regardless of what happens at the next election, though, it appears that there is no easy way for the Republicans to undermine Obamacare enough to destroy it, and it would be increasingly reckless of them to try. Obama’s legacy looks to on increasingly solid ground, and I think it’s now safe to say that he was one of the greatest of the modern presidents. Who would have thought a Kenyan Muslim could go so far!?

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