To preserve Obamacare, liberal states plan to use Trump's words against him

Democratic attorneys general and lawyers say President Trump's suggestion he would let Obamacare 'explode' could be used in court as proof that he is violating the 'take care' clause.

First Look

To stop President Trump from undermining Obamacare, Democratic Massachusetts Attorney General Maura Healey is considering an approach that has worked against the administration on immigration: using Mr. Trump's own words against him.

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 US 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 health-care 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 Attorney General 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 US 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.

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.