1. Repeal and replace

Republican opposition to the Patient Protection and Affordable Care Act (ACA) long preceded Trump's election. After failing to block its passage, the Republican Party has been trying to repeal it since President Obama signed it into law in 2010. The so-called ‘Tea Party’ Republicans pointed to the ACA as an example of what was wrong with government and used anger about the law to increase turnout among conservative activists in the 2010 mid-term elections, leading to a Republican majority in the U.S. Senate. That majority blocked much of President Obama's agenda during his last six years in office, protected President Trump against impeachment, and facilitated his efforts to pack the federal judiciary with conservative judges. The success of the Tea Party in the 2010 mid-term and the perception that attacks on the ACA helped produce the 2010 Republican electoral victories (Konisky and Richardson, Reference Konisky and Richardson2012), encouraged both Mitt Romney in 2012, and Donald Trump in 2016, to make attacks on the law central to their campaigns. Obama defeated Romney in 2012, but the Republican party went on to capture the presidency and both houses of Congress in 2016, providing the new Administration with an arguable mandate to ‘repeal Obamacare’ (Nadash et al., Reference Nadash, Miller, Jones, Gusmano and Rosenbaum2018). As presidential candidate Trump put it, ‘On my first day I'm going to ask Congress to immediately send me a bill to repeal and replace Obamacare’ (Bump, Reference Bump2017).

The ACA repeal effort became the top priority for Congressional Republicans. The process for Senate Republicans was especially complicated, despite their 52–48 majority, as the Democrats would need only 41 votes to filibuster a general ACA repeal effort. In this context, the Republicans had to proceed via the ‘budget reconciliation’ process, which only requires a simple majority. Perhaps ironically, the more limited nature of such budget legislation (that it could only include provisions with clear fiscal implications) actually worked in the Republicans favor, because it meant that their proposals would maintain parts of the law that enjoyed bipartisan support, such as the provision that young adults up to age 26 could stay on their parents coverage. In the spring of 2017, it seemed quite likely that the Republicans would succeed in their ‘repeal Obamacare’ campaign pledge.

The various ‘repeal and replace’ proposals shared certain key features: ending federal funding for the ACA Medicaid expansion; capping federal spending on the remaining Medicaid program; repealing both the individual and employer health insurance mandates, gutting the ACA marketplaces (by slashing federal premium subsidies and cost-sharing reductions), and eliminating the various taxes that were used to finance the coverage expansions. The Democrats remained united in their opposition, and were joined by 20 House Republicans, but in May 2017, the House enacted the American Health Care Act (AHCA) by a four-vote majority. According to the Congressional Budget Office (2017) in its first decade, the AHCA would reduce the number of Medicaid enrollees by 15 million, and another 7 million people on the ACA marketplaces would lose coverage.

Senate Majority Leader Mitch McConnell tried, through June and July of 2017, to generate enough votes to pass several successive versions of the Republican bill, but he was unsuccessful, falling one vote short when John McCain (R-AZ) joined Susan Collins (R-ME) and Lisa Murkowski (R-AK) in opposing the effort. In September, Senators Lindsey Graham (R-SC) and Bill Cassidy (R-LA) introduced a new bill in an effort to resurrect repeal and replace. The Graham–Cassidy bill would have led to even more radical reductions to the Medicaid program and would have eliminated federal health insurance regulations and subsidies for people to purchase individual policies in the marketplaces by 2020 (Thompson et al., Reference Thompson, Gusmano and Shinohara2018). As with the previous Republican bills, the CBO found that it would markedly increase the number of uninsured and it too failed to generate enough support among Republicans to pass (Thompson et al., Reference Thompson, Gusmano and Shinohara2018).

2. Executive actions

Even before the defeat of the Republican bills in Congress, the Trump administration had looked to executive actions to scale back the reach of the ACA. On his first day in office, Trump issued an executive order directing administrative agencies ‘exercise all authority and discretion available to them to waive, defer, grant exemption from, or delay’ any provision of the ACA that would impose a burden on the states, individuals, health care providers, and other stakeholders (Jost, Reference Jost2017). After the Congress failed to adopt a repeal and replace law in 2017, the efforts to use the powers of the administrative presidency intensified. These sabotage efforts included the use of executive orders, changes in spending priorities, and the use of Medicaid waivers to limit enrollment in that program.

The Trump administration limited efforts to boost enrollment by advertising and outreach by canceling $5 million in such appeals authorized by the Obama administration. One estimate suggested that this curtailment reduced enrollment by almost 500,000 people (Center for American Progress, 2020). The administration also ended contracts with two firms that had assisted people when applying for insurance, and it reduced the length of enrollment windows (Thompson et al., Reference Thompson, Gusmano and Shinohara2018). Moreover, the Department of Health and Human Services posted videos on YouTube of people who said they had been burdened by the law and made it more difficult to find information about ACA enrollment on its website (Carlsen and Park, Reference Carlsen and Park2017).

President Trump also issued an executive order increasing the permissible duration of short-term ‘transitional’ insurance plans (that do not need to provide the ‘essential benefit package’) from three to 12 months (and permitted renewals of such plans for up to 36 months) (Sparer, Reference Sparer2020), while also encouraging the sale of other insurance products (such as Association Health Plans) that do meet ACA standards (Lotven Reference Lotven2017). Moreover, before Congress eliminated the tax penalty for failure to comply with the ACA's individual mandate in 2017, Trump suggested that the administration might not enforce it (Thompson et al., Reference Thompson, Gusmano and Shinohara2018).

Medicaid Waivers: Following an approach used extensively by U.S. presidents since the 1990s, President Trump sought to shape the implementation of the ACA through the use of Medicaid waivers (Thompson et al., Reference Thompson, Gusmano and Shinohara2018; Gusmano and Thompson, Reference Gusmano and Thompson2020). The Centers for Medicare and Medicaid Services (CMS), encouraged governors to submit new 1115 waivers (Verma and Price Reference Verma and Price2017). They endorsed the adoption of premiums and other enrollee cost sharing, fees penalizing enrollees who use hospital emergency departments for non-urgent care, restrictions on ‘presumptive eligibility’, work mandates, more extensive reporting, and a host of other requirements designed to decrease Medicaid enrollment, all in sharp contrast to the original intent of the ACA which relied heavily on Medicaid to expand insurance coverage (Pamela et al., Reference Pamela, Deleire, Harvey and Moynihan2013). Moreover, the CMS also encouraged states to lock people out of coverage for at least six months if they fail to comply with the new waiver terms, imposing additional hardship on needy and vulnerable populations.

A number of states with Republican governors have pursued these waivers. As of July 2020, six states (Arizona, Indiana, Ohio, South Carolina, Utah, and Wisconsin) had CMS-approved 1115 waivers with work requirements. Another nine states are awaiting a CMS decision on their proposals. Four other waivers with work requirements were challenged in court and set aside (Arkansas, Kentucky, Michigan, and New Hampshire). In most of these states, the waivers require able-bodied adults to spend at least 20 hours per week in employment, education or training, and in searching for jobs or participating in various forms of community service.

Studies suggest that the administrative requirements associated with these waivers are challenging and inevitably lead to reductions in overall Medicaid enrollment (Rudowitz et al., Reference Rudowitz, Musumeci and Hall2019). While many of the waiver programs (especially the work requirement initiatives) seem unlikely to survive judicial scrutiny, the 2020 election will determine whether Medicaid waivers will revert to their original purpose (testing new and innovative approaches to increasing coverage) or remain a tool designed primarily to create bureaucratic obstacles to such coverage.

3. Tax cuts and the ACA's individual mandate

The key legislative victory during the Trump administration has been the enactment of the Tax Cuts and Jobs Act (TCJA). The TCJA was signed into law by President Trump on 22 December 2017. Along with the other tax cuts included in the TCJA, the law eliminated the ACA's ‘shared responsibility payment’, which penalized those who failed to comply with the requirement to purchase health insurance. That individual mandate to purchase insurance and its tax penalty were the least popular features of the ACA, but when the law was upheld as constitutional in 2012 by the U.S. Supreme Court in NFIB v. Sebelius, the penalty was considered a legitimate exercise of Congress's power to tax (Gais and Gusmano, Reference Gais and Gusmano2020). Although a few states responded to the TCJA by creating state-level tax penalties designed to support the individual mandate, the elimination of the federal penalty by the TCJA created an opening for conservative opponents of the law.

4. An existential threat: Texas v. United States

In February 2018, 20 states,Footnote ¹ led by Texas, sued the federal government to strike down the entire ACA. They argued that, without the tax penalty, the individual mandate was unconstitutional, and that, since the mandate allegedly could not be severed from the rest of the law, the entire ACA must fall. The Trump administration agreed that the individual mandate was now unconstitutional, but initially argued that only certain provisions of the law (such as the ACA's protections for people with pre-existing conditions) could not be severed from the mandate and should be struck down. Judge O'Connor of the Northern District of Texas ruled, however, that the individual mandate is essential to and inseverable from the entire ACA and that the entire law therefore should be declared invalid (Keith, Reference Keith2018). After that District Court ruling, the Trump administration changed its position and it now argues that the individual mandate is indeed inseverable from the rest of the law and the entire ACA should be struck down. In January 2020, the 5th Circuit Court of Appeals issued a 2 to 1 decision finding that the individual mandate is unconstitutional, but it sent the case back to the trial court for additional analysis on the severance issue. Meanwhile, however, the Supreme Court will hear an appeal on the underlying merits of the constitutional challenge shortly after the 2020 election.

The majority of legal scholars in the U.S. argue that the Constitutional argument for striking down the entire ACA is weak. As one scholar put it, the case ‘should have been laughed out of court’, – but it may end up killing Obamacare (Bagley, Reference Bagley2019). Critics argue that ‘Congress has affirmed the ACA's core policies by building upon them when addressing new public health challenges. And it has conspicuously declined to repeal the ACA in its entirety, despite repeated opportunities and campaigns to do so’ (Collier et al., Reference Collier, Kimberly and Waring2020). They further contend that the decision by Congress to eliminate the shared responsibility payment while leaving the rest of the ACA in place is controlling evidence that Congress accepts the idea that the provisions of the law are severable (Collier et al., Reference Collier, Kimberly and Waring2020).

5. A look forward

The Republican party has waged a continual assault on the ACA since its adoption in 2010. President Trump continued this effort, but with limited success. His administration's executive actions have reduced the insurance protections offered by the law, and the 2017 tax law's elimination of the financial penalty for failure to comply with the individual mandate may yet lead the Supreme Court to strike down the law as unconstitutional. If President Trump is able to replace Justice Ginsburg on the Supreme Court before the election, it may be more likely that the Court will rule that the law is unconstitutional. The future of the law, however, is likely to be settled by the 2020 election. In the 2018 mid-term elections, Democrats used the Trump administration's threats to the ACA as a rallying cry for their base and as a bridge to independents, and it helped them secure a majority in the House of Representatives (Scott, Reference Scott2020). A Biden victory in 2020 (especially if Democrats enjoy control of both congressional chambers) would reverse the effort to undermine the ACA, and lead to a series of initiatives designed to stabilize and expand the laws reach, though Biden's rejection of a ‘Medicare-for-All’ approach probably means that the U.S. would continue to rely on a patchwork, public–private system with inadequate mechanisms for controlling health care spending (Gusmano et al., Reference Gusmano, Laugesen, Brown and Rodwin2020). In contrast, the reelection of President Trump is likely to result in either a further erosion of the ACA or, depending on the next ACA decision by the Supreme Court, its elimination.