The Trump administration’s surprise call for the courts to strike down ObamaCare upended Capitol Hill on Tuesday, putting Republicans in a bind while giving Democrats new talking points on one of their favorite issues for the 2020 elections.
GOP lawmakers for the most part were reluctant to even talk about the Justice Department’s decision to call for all of ObamaCare to be struck down in a court filing.
If the courts agree with the Justice Department, it would dramatically change the way health care is now delivered in the country, and insurance companies were among those criticizing the administration’s decision.
For the GOP, it shifted the political discussion from a more welcome storyline about the end of special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE’s probe to health care — the issue Democrats see as helping them win back the House majority last fall.
House Minority Leader Kevin McCarthyKevin McCarthyOvernight Hillicon Valley — Scrutiny over Instagram's impact on teens Top Democrats tout California recall with an eye toward 2022 Former national security officials warn antitrust bills could help China in tech race MORE (R-Calif.) deflected a question about the ObamaCare case at his leadership press conference and told reporters to call his office. Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellLindsey Graham: Police need 'to take a firm line' with Sept. 18 rally attendees Manchin keeps Washington guessing on what he wants CEOs urge Congress to raise debt limit or risk 'avoidable crisis' MORE’s (R-Ky.) office had no immediate comment.
Democratic presidential candidates, for their part, quickly denounced the move.
“In 2020, we need to elect a president who will make health care a right,” Sen. Kamala HarrisKamala HarrisStefanik in ad says Democrats want 'permanent election insurrection' Live coverage: California voters to decide Newsom's fate Florida woman faces five years in prison for threatening to kill Harris MORE (D-Calif.) wrote on Twitter.
Senate Democratic Leader Charles SchumerChuck SchumerBiden discusses agenda with Schumer, Pelosi ahead of pivotal week CEOs urge Congress to raise debt limit or risk 'avoidable crisis' If .5 trillion 'infrastructure' bill fails, it's bye-bye for an increasingly unpopular Biden MORE (N.Y.) said the administration’s move ties an “anchor around the neck of every Republican for the next two years.”
Many Republican lawmakers declined to take a firm position on whether they support or oppose the Trump administration’s move, but their guarded responses illustrated the difficulty of the issue for them.
McCarthy’s spokesman issued a statement later on Tuesday that did not explicitly spell out McCarthy’s position on the legal case. It did call ObamaCare a “broken law” and said that Republicans have been clear that “Americans with preexisting conditions will be protected.”
But if the entire law were struck down, it would eliminate protections in the law that forbid insurance companies from denying insurance to people with pre-existing conditions.
Republicans facing tough races in 2020 dodged on whether they supported the Trump administration’s move.
“I do believe that the White House is in discussions with the majority here in the House, the Democrat majority, on prescription drug prices and some other things to lower that cost curve, so that's what I'm in favor of,” said Rep. Ann WagnerAnn Louise WagnerConservative women's group endorses Sarah Huckabee Sanders for Arkansas governor FOSTA is model for reforming Section 230 Navy admiral criticizes defense contractors over lobbying efforts MORE (R-Mo.), whose district the Cook Political Report rates as “lean Republican” for 2020.
Sen. Thom TillisThomas (Thom) Roland TillisGOP senators unveil bill designating Taliban as terrorist organization Without major changes, more Americans could be victims of online crime How to fix the semiconductor chip shortage (it's more than manufacturing) MORE (R-N.C.), who is up for reelection next year, said “every time we say [repeal] we have to have a replace” but also did not give a firm position on whether he supports or opposes the administration’s move.
Ford O’Connell, a GOP strategist, said that because most legal experts do not think the anti-ObamaCare lawsuit will ultimately succeed, the issue will eventually be moot. At the same time, he acknowledged the administration’s filing creates a positive story for Democrats.
“Internally in their mind they’re breathing a sigh of relief,” O’Connell said of Democrats who can now talk about health care instead of Mueller’s findings.
Sen. Susan CollinsSusan Margaret CollinsWelcome to ground zero of climate chaos A tale of two chambers: Trump's power holds in House, wanes in Senate Bipartisan blip: Infrastructure deal is last of its kind without systemic change MORE (R-Maine) was the rare Republican to directly say she was opposed to the administration’s move, calling it “very disappointing” and noting that the Department of Justice is supposed to defend “duly enacted laws, which the Affordable Care Act certainly was.”
The timing of the administration’s move seemed like incredible fortune for Democrats, many of whom were deflated by the Mueller news.
“At a time when all this Russia news came out and it’s not what voters are interested in, leave it to the Trump administration to turn it back to health care, which is why we’re in the majority,” said Rep. Scott PetersScott H. PetersDemocrats brace for toughest stretch yet with Biden agenda Sanders 'disappointed' in House panel's vote on drug prices The Hill's Morning Report - Presented by National Industries for the Blind - What do Manchin and Sinema want? MORE (D-Calif.).
Trump, during a private lunch at the Capitol on Tuesday with Senate Republicans, called for revisiting ObamaCare and coming up with something better, lawmakers said.
He did not offer details, other than saying that “whatever it is” should protect people with pre-existing conditions, Sen. Mike RoundsMike RoundsThe 19 GOP senators who voted for the T infrastructure bill Senate passes T bipartisan infrastructure bill in major victory for Biden Senate votes to end debate on T infrastructure bill MORE (R-S.D.) said while leaving the lunch.
With Democrats in control of the House, however, the chances of Congress agreeing on bipartisan ObamaCare legislation are essentially zero.
“He just mentioned in passing that there was litigation moving through the courts, but litigation takes a while and he wanted to see us revisit the subject,” said Sen. John KennedyJohn Neely KennedyMORE (R-La.).
A lower court judge invalidated ObamaCare in December in response to the lawsuit, brought by 20 GOP-led states.
But that judge is known as a staunch conservative, and legal experts in both parties predict that the lawsuit will not ultimately succeed, either at the 5th Circuit Court of Appeals, where the case currently is, or at the Supreme Court.
The challengers argue that because Congress in 2017 repealed the financial penalty in the mandate for having coverage, the mandate can no longer be upheld as constitutional under Congress’s taxing power. They say that because the mandate should fall, the entire rest of the law should also be struck down.
Most legal experts say precedent shows that even if the mandate falls, there is no reason for courts to strike down the rest of the law, since Congress purposefully left the rest of ObamaCare in place while repealing the mandate penalty in the 2017 tax law.
Sen. John CornynJohn CornynDemocrats make case to Senate parliamentarian for 8 million green cards Democrats to make pitch Friday for pathway to citizenship in spending bill Without major changes, more Americans could be victims of online crime MORE (R-Texas) did not give a position on the case. “I support having the courts make the decision,” he said.
But he noted that the issue of health care is not going away.
“I expect we'll continue to have a conversation about health care into the indefinite future,” he said.