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Why the Trump DOJ’s New Move to Try and Kill Obamacare Is So Surprising

Trump DOJ ObamacareTrump DOJ Obamacare
The Trump administration has ramped up its war on Obamacare, asserting the whole law is unconstitutional.Toya Sarno Jordan—Getty Images

The Trump administration on Monday made one of its biggest moves to date against the Affordable Care Act (ACA), asserting that the entirety of Obamacare should be nullified following a controversial Texas court ruling to that effect. It marks an escalation by the Department of Justice, which initially had argued that only the health law’s protections for Americans with pre-existing medical conditions (one of its most popular features) were unconstitutional following the repeal of the individual mandate in the 2017 tax cut law.

This latest move goes significantly further. A wholesale dismantling of Obamacare—including its private individual health insurance marketplaces, its optional state-by-state expansion of Medicaid, its pre-existing conditions protections, allowing people up to age 26 to remain on their parents’ health plans, and a bevy of other major measures—would lead to approximately 20 million more uninsured people in 2019 relative to current law, according to independent analyses by groups like the Urban Institute.

The unexpected announcement caught numerous GOP lawmakers, many of whom aren’t exactly enamored with the ACA, by surprise. Tennessee Republican Sen. Lamar Alexander, who chairs the Senate’s health committee, explicitly referred to the Justice Department’s surprise brief as “a dubious legal theory and we won’t know for a long time whether it succeeds.” That echoes the sentiments of several legal experts across the ideological spectrum so said the Texas court ruling was based more in politics than legal precedent.

“The brief in the district court was the least defensible I’ve ever seen from DOJ–so bad that the *only* career lawyer from FedPrograms to sign it was someone hired just weeks before. The letter today reflects an even *less* defensible position,” wrote Georgetown University law professor Marty Lederman in a tweet.

The working theory seems to be that President Trump wants to force health care as an issue in Congress and pressure lawmakers into coming up with an Obamacare alternative. “The Republican Party will become ‘The Party of Healthcare!'” wrote Trump in a tweet.

But, as Alexander pointed out on Tuesday, “We couldn’t repeal [Obamacare] and replace with a Republican House.” The issue becomes a lot more complicated with a Democratic House of Representatives (and the Texas ruling may very well be struck down by an appellate court or the Supreme Court).

Democrats, on the other hand, rejoiced. Polling has shown that the party’s landslide electoral victory in the 2018 midterms was largely attributable to the health care debate following Republicans’ repeated (and failed) efforts to repeal the ACA. Nearly 40% of voters in the election said health care was their top issue, and a third of those voters voted for Democrats. In February, House Minority Leader Kevin McCarthy went so far to directly blame the repeal movement for GOP losses.

Heading into the 2020 presidential election, the Justice Department’s decision sets up a ready made talking point for both Congressional and presidential candidates, especially given Trump’s past insistence that protecting people with pre-existing conditions and expanding coverage was one of his biggest priorities.

It also set up a clear contrast with even mainstream Democrats’ increasing embrace of Medicare for All. And, on Tuesday, just three days after Obamacare’s nine-year anniversary, House Democrats introduced new legislation meant to fortify the law, including measures to expand coverage and undo the various administrative cuts executive agencies have made to the ACA under Trump.