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 Trump said he would let the Affordable Care Act "explode" after
Republicans failed last month to pass their own repeal bill in
Congress, and told the Wall Street Journal on Wednesday that he may
withhold billions of dollars of payments to insurers to force
Democrats to negotiate on healthcare.
Public statements like that led to judges blocking Trump's proposed
travel bans earlier this year, and could prove to be one line of
attack in legal attempts to protect the healthcare bill, according
to a handful of liberal U.S. lawyers and state attorneys general.
They said they are waiting to see what action the administration
ultimately takes on the healthcare law before they will officially
respond.
Democratic attorneys general took a lead role to successfully block
Trump's executive orders restricting travel from some
Muslim-majority countries, and are also resisting efforts to roll
back environmental regulations.
Now, the threat of potential litigation over the healthcare law from
states, which takes a page from the Republicans' playbook during the
Obama administration, is complicating the Trump administration's
efforts to formulate its own approach on health policy outside
congressional legislation, according to two conservative lobbyists
briefed on internal discussions.
The White House maintains that the healthcare law is "already
collapsing on its own, and will continue to go in the wrong
direction as more Americans face skyrocketing premiums, higher
deductibles, and less choice," an administration spokesman told
Reuters. "President Trump and his administration are committed to
working with Congress to repeal and replace Obamacare."
Noting that several federal judges cited Trump's comments on Muslims
to support the idea that his executive orders unconstitutionally
targeted a religious group, Massachusetts AG Healey said Trump is
legally bound to enforce the ACA. But his words make it clear he is
willing to sabotage it, in her view.
"He is intent on setting the dynamite and blowing this up," Healey
told Reuters.
She said it is too early to speculate about specific legal action
but said Trump's remarks about the law "suggest he is out there not
just hoping that it fails but working to see it fail."
In addition to Healey, Democratic attorneys general for California,
Connecticut and the District of Columbia told Reuters they are
closely monitoring the administration for any signs it is
undermining the ACA.
The California attorney general's office recently hired a health
policy expert, Melanie Fontes Rainer, who worked for Democrats in
the U.S. Senate. California Attorney General Xavier Becerra said in
a statement his office is "leaning forward when it comes to
protecting our people's right to affordable, quality health care."
Four private lawyers in Washington D.C. said they have discussed
possible challenges among themselves and potential clients who have
benefited from the law. One such legal challenge being discussed is
suing the Trump administration for failing to abide by the "take
care clause," which requires that the president faithfully execute
laws enacted by Congress, according to Deepak Gupta, a Washington
lawyer who often works on public interest cases.
"That the president is operating in good faith … is pretty critical
to how the law works. That good faith is legitimately in question,"
he said.
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Texas and other states that challenged Obama's executive action
seeking to prevent immigrants from being deported cited the take
care clause in their lawsuit, claiming he was failing to enforce
immigration law.
'A PLAYBOOK THAT REPUBLICANS WROTE'
Obamacare, former President Barack Obama's signature legislative
achievement, enabled 20 million Americans to gain health insurance.
The new administration could effectively cripple Obamacare with a
pending Republican lawsuit over cost-sharing subsidies that was
appealed by the Obama administration and put on hold when Trump took
office.
Trump said he may withhold the payments, which help cover
out-of-pocket medical costs for low-income people, that Republicans
argue must be appropriated by Congress. Proponents of Obamacare say
that not funding the subsidies, which amount to about $7 billion a
year, would torpedo the law because it would cause insurers to flee
the individual market and could leave millions of people without a
place to purchase insurance.
But the administration must weigh whether to fund the subsidies at
the risk of being viewed as helping the law succeed, or be blamed -
and possibly sued by attorneys general - for the law's demise,
according to the lobbyists, who have been briefed on internal
discussions.
"There's a concern that liberal attorneys general would file suits,"
one lobbyist said. "This is a playbook that Republicans wrote during
the Obama administration."
In some respects, the Trump administration has already taken steps
to erode parts of the law.
It said it will not enforce the individual mandate, the requirement
that everyone have health insurance or pay a penalty, which experts
say is needed to keep healthy people in the markets and offset more
expensive patients.
Dave Jones, the California state insurance commissioner, wrote a
letter to Trump earlier last month requesting that the
administration "stop taking administrative actions which undermine
the Affordable Care Act and destabilize health insurance markets
across the country."
Jones is also running for attorney general in California, a heavily
Democratic state where fighting the Trump administration is a key
political asset.
If the administration does not enforce the law, "we will certainly
look at all our legal options and remedies that might be available,"
he said.
(Editing by Edward Tobin)
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