How Trump Could Take Away Obamacare With a Second Term

After packing the courts, the president’s use of executive authority will be more effective.

This essay is part of a package imagining the policy consequences of a second Trump term. Read the rest of the essays here. And, if you enjoy what you’re reading, please consider making a donation—we’re a nonprofit media organization and rely on the support of our readers. In return for a contribution of $50 or more, you’ll receive a complimentary one-year subscription to our print edition.

“If I were Trump, I’m not sure I’d really want health care to be my headline legislative battle,” said Harold Pollack, a professor at the University of Chicago and an expert on health policy. Health care is the one issue where Democrats have a huge polling advantage, he continued. “Why foreground that if you can do other things?”

Which is not to say that nothing will happen, he was quick to add.

Health policy experts from across the political spectrum agree that if Trump wins a second term in the White House, health care may not be a legislative priority. Particularly if Democrats retain a majority in the House of Representatives.

There’s always the possibility that an external factor will spur action. A new disease threat—either the new coronavirus or some other highly contagious disease—could force the White House and Congress to work together to improve the nation’s public health infrastructure. Also looming is the insolvency of the Medicare trust fund, currently estimated to take place in 2026. The last two times Medicare was close to not being able to pay all its bills—in 1983 and 1997—Congress and the president (Ronald Reagan and Bill Clinton, respectively) stepped in to shore up the program’s finances.

Then there are a handful of issues so important to the public that addressing them has gained bipartisan support in Congress. Finding a way to bring down drug prices has been a priority for both Congress and Trump, as has fixing the problem of “surprise” medical bills that show up when an insured patient receives health care outside of his or her insurance network. If these issues aren’t dealt with before the 2020 election, they will likely get rolled over onto the next Congress’s to-do list.

If he’s unable to make much progress through legislation, Trump is likely to turn to a strategy Obama embraced in his second term: Use executive authority. “I’ve got a pen, I’ve got a phone,” Obama famously said. Since congressional Republicans and the Trump administration have failed to repeal and replace Obama’s signature health law, they’ve already adopted this approach.

Judges have blocked many of the administration’s rule changes, like its efforts to add work requirements to Medicaid. If Trump wins a second term, this trend might reverse.

“Obamacare won’t be repealed, it will just rust away,” Pollack said. For example, the Trump administration has hobbled the state marketplaces where individuals can buy insurance, with a variety of small-scale policy changes. The administration cut nearly all the funding for staff to help people sign up for coverage through the marketplaces, and made it easier for consumers to buy cheaper plans elsewhere that may not cover preexisting conditions, one of the core requirements of the Affordable Care Act. “The president and Republicans see it as politically advantageous to have the marketplaces function poorly,” Pollack told me.

The administration may have other rule changes teed up. A second-term Trump administration might try even harder to make changes to Medicaid that would allow states to functionally shrink the program. In exchange for decreased federal funding, states would be allowed to side-step some current federal rules on who and what must be covered. The proposal is almost certain to be challenged by opponents in court. But if it goes into effect, people in states that take the deal could see Medicaid co-pays increase and benefits decrease, or could lose coverage entirely.

Trump has already put forward a number of far-reaching executive initiatives only to have them halted by the courts. Proposals that would let states require Medicaid recipients to prove that they work or perform community service in order to keep their health insurance have been struck down in three states. In a recent ruling overturning the new requirements, judges noted that when Arkansas added work requirements, some 18,000 people lost health coverage. In most cases, people lost coverage not because they failed to meet the work requirements, but because the process for reporting their hours to the state was too cumbersome. In addition, the courts blocked a Trump order that would make it easier for health care workers to decline to perform or even help with abortions or other procedures that violate their conscience. A rule that required drug companies to include prices in their television ads was also struck down.

If Trump wins a second term, this trend might reverse. The Senate spent most of 2019 not passing legislation, but approving new judges—at twice the typical annual rate. In 2019 alone, according to the National Review, the Republican-majority Senate filled the seats of nearly 12 percent of the American judiciary. With a simple majority vote, Mitch McConnell sped up confirmations by changing Senate rules. And on average, Trump-appointed judges are more conservative than those chosen by past Republican presidents.

The White House is wearing this as a badge of honor. “President Trump’s historic appointments have already tipped the balance of numerous Federal courts to a Republican appointed majority,” read a White House press release, adding, “Approximately 1 out of every 4 active judges on United States Courts of Appeals has been appointed by President Trump.”

There is also the possibility that another seat will open up on the Supreme Court. If Democrats don’t win the presidency in 2020, it’s hard to see how some of the aging liberals on the Court could hold on for another four years. Ruth Bader Ginsburg is 87, and in poor health. Stephen Breyer will turn 82 in August. A third pick for Trump would cement the conservative majority that’s already in place, perhaps for a generation.

The headline-grabbing issue for a change at the Court is abortion. There are already five nominally anti-abortion justices, and the first major abortion case since Brett Kavanaugh joined the bench will be decided later this year. Most observers think it unlikely that the Court will expressly overturn Roe v. Wade, the landmark 1973 case that legalized abortion nationwide. More likely is that it will simply approve more and more drastic restrictions until abortion is only available in the bluest of states. A sixth anti-abortion justice would make that all but certain.

And far more than abortion is at stake. Many of the president’s blocked proposals could eventually get a stamp of approval from a 6–3 conservative majority. The administration is supporting a lawsuit, currently making its way to the Court, that would declare the ACA unconstitutional in its entirety. Lawyers across the ideological spectrum consider the case legally dubious. But if the Trump administration wins another Supreme Court seat, the ACA could be struck down, and, with it, protections for preexisting conditions and other popular provisions.

One potential bright spot, Pollack predicts, is that Trump may not have the patience to enact other sweeping changes to the health care system. “I think this requires too much work,” he said, “and I think he’s bored by the level of detail.”

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Julie Rovner

Julie Rovner is the chief Washington correspondent for Kaiser Health News.