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January 2, 2019

The ACA's been struck down. So why aren't more Republicans celebrating?

Daily Briefing

    By Ashley Fuoco-Antonelli, Contributing Editor

    Republican lawmakers have been trying to repeal the Affordable Care Act (ACA) since it became law in 2010, but their chances of doing so grew dim after Democrats won control of the House in this year's midterm elections. So, naturally, you'd think Republicans would be cheering a recent court ruling that strikes down the law.

    Your cheat sheets for understanding health care's legal landscape

    That largely hasn't been the case, however, and some experts say it's because Republicans have a lot to lose—and no viable backup plan—if the ACA is eradicated.

    The ACA is deemed unconstitutional—and the GOP offers a lukewarm response

    Last month, U.S. District Judge Reed O'Connor in a declaratory judgement ruled that when Congress set the individual mandate's tax penalty to $0, it made the penalty unconstitutional. He also ruled that the ACA cannot be severed from the mandate, meaning the entire ACA must be struck down. O'Connor wrote in his ruling, "[T]he individual mandate 'is so interwoven with [the ACA's] regulations that they cannot be separated.'"

    President Trump was quick to celebrate the ruling, calling it "Great news for America." But many other Republicans have distanced themselves from the ruling.

    For example, a spokesperson for House Speaker Paul Ryan (R-Wis.), who led House GOP efforts to repeal and replace the ACA in 2017, told the Associated Press, "The House was not party to this suit, and we are reviewing the ruling and its impact."

    The Hill's Peter Sullivan notes that Senate Majority Whip John Cornyn (R-Texas) declined to say whether he supports the ruling. "Politicians opining on what they think judges should or should not do, I don't put a lot of stock in that," Cornyn told a reporter.

    Other Republicans indicated that lawmakers will need to protect certain parts of the ACA if the ruling stands. For instance, Sullivan reports that Sen. Joni Ernst (R-Iowa), declined to talk about the ruling with a reporter and instead referred the reporter to a written statement that read, "It is important that we protect people with pre-existing conditions, as we repeal and replace Obamacare."

    And others, including Sens. Susan Collins (R-Maine) and Lamar Alexander (R-Tenn.), said they expect the ruling will be overturned on appeal.

    Why the half-hearted response?

    So why are Republicans suddenly shying away from a goal they'd been after for so long?

    Sullivan writes, "As the [ACA] has become more entrenched, and after Republicans tried to undo much of its coverage expansion[s] last year, the focus has shifted to the benefits that would be taken away if repeal efforts succeeded, such as popular protections for people with pre-existing conditions."

    According to Politico's Sarah Karlin-Smith, Rachel Roubein, and Brianna Ehley, the ruling also jeopardizes popular ACA provisions that lower prescription drug costs for Medicare beneficiaries, expand Medicaid coverage to low-income U.S. residents, and move the U.S. health system toward value-based payments.

    And Republicans appear to be concerned about the political consequences of nixing popular ACA provisions, Sullivan writes. The Wall Street Journal acknowledged that concern, with its editorial board writing that a ruling ultimately striking down the ACA would "boomerang politically" on the GOP.

    Then of course, there's also the problem of what becomes of the health care system if the ruling is upheld. Dan Diamond in Politico's "Pulse" reports that CMS Administrator Seema Verma when asked about the ruling and the potential fallout last month said, "We do have contingency plans," adding, "We want to make sure that people with pre-existing conditions have protections, and we want to make sure that people have access to affordable coverage."

    But so far, no backup plans have surfaced, and sources told Politico that the ruling sent health officials scrambling to figure out their options.

    Where the lawsuit stands

    The ruling was left in a legal limbo until O'Connor on Sunday certified his ruling and wrote that the ACA should remain in place while his decision is appealed to the 5th U.S. Circuit Court of Appeals.

    The order allows Democratic attorneys general (AGs) who are defending the ACA in the case to file an appeal. A spokesperson for California AG Xavier Becerra, who is leading the AGs in their defense, said California will file an appeal "imminently"

    While legal experts have noted there are several ways Congress could step in and address the issues raised in the ruling, the chances are slim that such a fix will happen soon, if ever. Senate Republicans last month blocked a vote on a resolution that would have permitted the Senate to intervene in the lawsuit.

    So to say the least, it's shaping up to be an eventful 2019 for health reform.

    Cheat sheet: What you need to know about the ACA


    The Patient Protection and Affordable Care Act, otherwise known as the ACA, is the comprehensive health care reform bill passed by Congress in March, 2010. The law reshapes the way health care is delivered and financed by transitioning providers from a volume-based fee-for-service system toward value-based care.

    Download the ACA cheat sheet to get a quick overview of this significant U.S. health care legislation.

    Get the Cheat Sheet

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