“Obamacare is the law of the land”

In an astonishing display of what Lawfare Editor in Chief Benjamin Wittes called “malevolence tempered by incompetence,” the Republican party, Speaker of the House Paul Ryan, and President Trump collectively failed Friday to take the first significant step in passing a bill which would have left 24 million Americans without health insurance by 2026. The bill, called the American Health Care Act but also known alternately as Trumpcare, Ryancare, and Republicare, was the first in a planned series of legislation intended to repeal and replace the Affordable Care Act, a key Republican promise since Obama signed the final piece of his signature health care reform package almost exactly seven years ago. After Ryan and Trump agreed to withdraw the bill due to significant opposition from House Republicans and others, that promise seemed dead–at least for, as Ryan put it in a press conference Friday afternoon, “the foreseeable future.”

Speaker Ryan had intended for the AHCA to pass as a budget reconciliation bill so that it would not need 60 votes to overcome an inevitable Democratic filibuster in the Senate, but as it turned out, that threshold didn’t even come into play. Although some predicted the bill’s extreme unpopularity among both the far right House Freedom Caucus and a crucial handful of Republican Senators would cause any bill which passed the House to fail in the Senate, few imagined that a wide enough gap existed between the Freedom Caucus and other House Republicans to prevent the AHCA from even making it out of the House. This surprising result left Ryan and many of his party’s politicians stunned and Democrats triumphant and relieved across the country:

As I wrote last week, the politics of the GOP’s Obamacare repeal and replace effort were deeply troubled from the very beginning. Although Republicans had been unified for years in opposition to the ACA, having unsuccessfully voted nearly 70 times to repeal it, the election of Donald Trump presented an opportunity to fulfill the party’s longtime goal fraught with as much peril as potential. Democrats as well as many Republicans were strongly against the AHCA’s devastating cuts to individual subsidies as well as its blatant tax cuts, most of which would go to those making over one million dollars per year. On the other hand, the farthest right wing of the party, including the white supremacy propaganda site Breitbart and the House Freedom Caucus, whose votes were required for the bill’s passage, blamed Ryan for crafting legislation (with no input and little time before the vote) which still essentially resembled the form of Obamacare, a form which tacitly accepted the left’s belief in government regulated and subsidized health insurance. For his part, Trump lent the AHCA his tepid support despite promising both during and after the campaign that his health care reform would not touch Medicaid (which the bill gutted), but would lower prices (it wouldn’t) and increase coverage (nope). The result was that the AHCA garnered only 17% support in a Quinnipiac poll released Thursday, March 23. From the start, the battle lines seemed intractable, and indeed they resulted Friday in what was less of a strategic retreat and more of a flailing rout for all involved.

The shoddy edifice of prospective success erected by Ryan and others (including an absurd ad campaign extolling the virtues of the GOP ACA replacement aired before the AHCA had even been written) began to crumble Thursday, when a promised vote on the bill was delayed due to difficult negotiations with the House Freedom Caucus. Reports indicate that the far right caucus desired something closer to a full repeal–including the elimination of some ACA provisions unrelated to the budget, which could not be passed through reconciliation and therefore would not survive a Democratic filibuster in the Senate. (However, this did not prevent Trump from suggesting that the unpopularity of the AHCA was due to people not considering the second and third phases of the repeal plan, both of which also would have had to somehow earn 60 votes in the Senate in order to pass.)

Throughout the last week, Ryan had turned to Trump, the self-styled master dealmaker, to bring the Republican party together.

Trump met with Congressional Republicans on Tuesday to tell them to get on board. The result? By the end of the day, ten more GOP Representatives had come out against the bill. Trump’s threats on Thursday that if this bill didn’t pass Friday, he would give up on ACA repeal and move to the next item on his agenda, proved equally futile, as support in the House continued to founder.

Desperate to shore up support for the bill, Ryan added three new proposed amendments on Thursday, hoping to appease the Freedom Caucus with, among other changes, a promise to remove federal regulations requiring insurer plans to cover 10 essential health benefits, including hospitalization, prescription drugs, emergency services, laboratory services, and pediatric care. (This change would have left determination of those requirements to the states, many of which would presumably have allowed insurers to offer cheap-but-worthless insurance plans featuring inadequate coverage to unsuspecting buyers.) But attempting to move the bill further right meant that Ryan was now losing a vote in the rest of the Republican conference for every one he gained on the far right. This was particularly due to pressure put on many GOP Representatives at constituent town halls across the country.

With neither side willing to budge, the AHCA was DOA; all that remained was to figure out who to blame. Ryan went to the White House. In a meeting with Trump late Friday, Ryan reportedly told the President he didn’t have the votes to pass the bill and asked Trump what to do. Around 2:30pm, Trump and Ryan announced that the vote had been canceled, shelving the AHCA indefinitely.

In his press conference that evening, Ryan unconvincingly praised Trump’s help during the legislative process (“He’s really been fantastic”) and dishonestly characterized the GOP’s efforts on their key issue as a close loss. For his part, Trump blamed Democrats for his party’s inability to pass the bill (“With no Democrat support, we couldn’t quite get there”), a nonsensical assertion given Republican control of both legislative bodies and a total lack of bipartisan cooperation on the part of Trump or the GOP with regard to health care reform.

As indicated by the fact that no one could settle on a nickname for the bill–Ryancare, Trumpcare, Republicare?–it’s as yet unclear who will bear the ultimate blame for this embarrassing legislative failure. Democrats are gleeful to pin this on the entire party as well as its leadership, while a coherent Republican narrative has yet to emerge.

Also unclear: the future for Republican attempts to repeal Obamacare. The GOP’s best chance to pass legislation, the budget reconciliation process, is limited to one bill per annual session. Now that health care appears to be off the table, Trump and Ryan have both indicated a desire to use this process to pass a tax reform bill. This would leave them essentially unable to do anything legislatively with the ACA until 2018, when the risks of another severely unpopular plan and/or humiliating failure would be heightened due to impending midterm elections.

But that doesn’t mean the GOP is left without a play to make. With the legislature helpless to repeal, Trump’s control of the executive still gives him significant leeway to damage the insurance marketplace under Obamacare through selective enforcement of the ACA’s provisions. Significant to this process would be Trump’s Secretary of Health and Human Services, Tom Price. One of the leading critics of the ACA, Price could use his department position to decide to grant blanket exceptions to the individual mandate, choose not to enforce coverage requirements among insurers, and refrain from informing the public about open enrollment periods, just to name a few potential methods of undermining President Obama’s legacy (although these efforts may inspire bureaucratic resistance). This undercutting would be a key element in Trump’s plan to leave the ACA in place and continue to use what he presumes will be its failures as a political cudgel during the 2018 midterm elections.

One problem with that scheme? As the GOP relied upon to their great advantage during the Obama administration, the American people tend to blame the party in power when things go wrong. Between their failure to make good on their seven year promise to repeal the ACA, their attempt to pass legislation this cruelly and poorly constructed, and a potential deliberately induced decline in the insurance market, Trump may discover himself to be exactly like an ordinary politician in at least one respect: that as President, he will bear the brunt of the nation’s disappointments. That in this case those sentiments will have found an accurate target is, albeit enjoyably ironic, completely irrelevant to the very real political consequences for this monumental failure.

The day after the AHCA was withdrawn, the president went to a golf club he owns in Virginia for the weekend, his twelfth such trip during the nine weeks he’s been in office.

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