Can States Fill the Gap if the Federal Government Overturns Preexisting-Condition Protections?

https://www.commonwealthfund.org/blog/2019/can-states-fill-gap-preexisting-condition-protections

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Once again, the Affordable Care Act (ACA) is under threat, this time in the form of Texas v. Azar, a federal lawsuit challenging its constitutionality. This litigation, now under consideration by the Fifth Circuit Court of Appeals, took an unexpected turn in March when the U.S. Department of Justice (DOJ) sided with the plaintiffs, urging the Court to strike the ACA down in its entirety.

On May 1, the administration filed a brief in support of this action. But even before this suit, DOJ had refused to defend key provisions that guarantee coverage of preexisting conditions. If the courts agree with the DOJ, it would invalidate every provision of the 2010 law.

As many as 20 million people nationwide would lose their coverage, while millions more could face insurance company denials, premium surcharges, or high out-of-pocket costs because of their health status.

ACA Protections for People with Preexisting Conditions

  • Guaranteed issue. Health insurers are prohibited from denying an individual or employer group a policy based on their health status.
  • Community rating. Health insurers may not use an individual or small employer group’s health status to set premiums.
  • Preexisting condition exclusions. Health insurers and employer group plans are prohibited from refusing to cover services needed to treat a preexisting condition.
  • Essential health benefits. Health insurers selling to individuals and small employers must cover a minimum set of 10 “essential” benefits: ambulatory services; emergency services; hospitalization; maternity and newborn care; mental health and substance use disorder services; prescription drugs; rehabilitative and habilitative services and devices; laboratory services; preventive and wellness services; and pediatric services, including oral and vision care.
  • Cost-sharing protections. Health insurers and employer group plans must cap the amount enrollees pay out-of-pocket for health care services each year.
  • Annual and lifetime limits. Health insurers and employer group plans are prohibited from imposing annual or lifetime dollar limits on essential health benefits.
  • Preventive services. Health insurers and employer group plans are required to cover evidence-based preventive services without any enrollee cost-sharing.
  • Nondiscrimination. Health insurers must implement benefit designs for individuals and small employers that do not discriminate based on age, disability, or expected length of life.

To help blunt potential fallout and prevent adverse effects for millions of individuals, several states are enacting bills to ensure that federal ACA protections become part of state law (see box). However, before the ACA, state efforts to require insurers to cover people with preexisting conditions resulted in large premium spikes and, in some cases, caused insurers to exit the market.

The ACA’s premium subsidies have had a critical stabilizing effect. If those subsidies are invalidated, states will have a hard time restoring them with state dollars. In addition, state regulation of self-funded employer plans is preempted under the federal Employee Retirement Income Security Act (ERISA), meaning the 61 percent of people with this type of job-based coverage can regain their protections under the ACA only if Congress steps in to restore them.

States Are Stepping Up, but Power to Fully Protect Consumers Is Limited

In a previous post, we found that at least four states (Colorado, Massachusetts, New York, and Virginia) had laws that would preserve key ACA preexisting-condition protections if the federal law is overturned. Since that time, seven more states (Connecticut, Hawaii, Indiana, Maine, Maryland,1 New Mexico, and Washington) have acted to preserve the ACA’s protections for their residents.

These bills take different approaches. Maine, New Mexico, and Washington passed comprehensive bills that would preserve all the protections listed above. The Connecticut, Hawaii, and Indiana laws are more narrowly focused. Hawaii and Indiana prohibit insurers from imposing preexisting condition exclusions; Connecticut aligns its benefit standards with the ACA. Maryland took a different approach, creating a workgroup to recommend ways to protect residents if the ACA is struck down. The governors of New Jersey and Rhode Island have issued executive orders directing their state agencies to uphold the ACA’s principles, by guarding against discrimination based on preexisting conditions and strengthening consumer protections to ensure access to affordable coverage.

Looking Forward

The Fifth Circuit Court of Appeals is expected to hear arguments in Texas v. Azar in July. Whatever that court decides, the losing party is likely to ask the Supreme Court to hear the case, and a ruling could come as soon as June 2020. With the future of the ACA hanging in the balance, at least 14 other states are considering legislation codifying some of the federal consumer protections during their 2019 sessions.

 

 

 

Trump Administration Files Formal Request to Strike Down All of Obamacare

The Trump administration formally declared its opposition to the entire Affordable Care Act on Wednesday, arguing in a federal appeals court filing that the signature Obama-era legislation was unconstitutional and should be struck down.

Such a decision could end health insurance for some 21 million Americans and affect many millions more who benefit from the law’s protections for people with pre-existing medical conditions and required coverage for pregnancy, prescription drugs and mental health.

In filing the brief, the administration abandoned an earlier position — that some portions of the law, including the provision allowing states to expand their Medicaid programs, should stand. The switch, which the administration disclosed in late March, has confounded many people in Washington, even within the Republican Party, who came to realize that health insurance and a commitment to protecting the A.C.A. were among the main issues that propelled Democrats to a majority in the House of Representatives last fall.

The filing was made in a case challenging the law brought by Ken Paxton, the attorney general of Texas, and 17 other Republican-led states. In December, a federal judge from the Northern District of Texas, Reed O’Connor, ruled that the law was unconstitutional.

A group of 21 Democratic-led states, headed by California, immediately appealed, and the case is now before the Fifth Circuit Court of Appeals in New Orleans. The House of Representatives has joined the case as well to defend the law.

Democrats wasted no time responding to the filing Wednesday. Xavier Becerra, the attorney general of California, a Democrat, said: “The Trump administration chose to abandon ship in defending our national health care law and the hundreds of millions of Americans who depend on it for their medical care. Our legal coalition will vigorously defend the law and the Americans President Trump has abandoned.”

The government’s brief did not shed light on why it had altered its earlier position, referring only to “further consideration and review of the district court’s opinion.”

Oral arguments in the appeals court are expected in July, with a possible decision by the end of the year, as the 2020 presidential campaign gets going in earnest. Whichever side loses is expected to appeal to the Supreme Court.

The Justice Department’s request to expedite oral arguments, granted last month, suggests that the administration is eager for a final ruling. In its application, it said that “prompt resolution of this case will help reduce uncertainty in the health care sector, and other areas affected by the Affordable Care Act.”

Democrats, seizing on the health law’s popularity and its decisive role in their winning the House last fall, are already using the case as a cudgel against President Trump as his re-election campaign gets started. The law’s guarantee of coverage for people with pre-existing medical conditions, in particular, remains very popular with voters in both parties as well as independents.

But Mr. Trump has appeared undaunted, tweeting in April that “Republicans will always support Pre-Existing Conditions” and that a replacement plan “will be on full display during the Election as a much better & less expensive alternative to Obamacare.”

Instead of providing specifics, though, Mr. Trump, members of his administration and other Republicans have focused on attacking the Medicare for All plans that some Democratic presidential candidates have sponsored or endorsed as a dangerous far-left idea that would, as Mr. Trump tweeted, cause millions of Americans “to lose their beloved private health insurance.”

As the administration and Texas noted in their briefs, Judge O’Connor’s ruling turned on the law’s requirement that most people have health coverage or be subject to a tax penalty.

But in the 2017 tax legislation, Congress reduced that penalty to zero, effectively eliminating it. Judge O’Connor, the plaintiff states, and now the Trump administration reasoned that, like a house of cards, when the tax penalty fell, the so-called individual mandate became unconstitutional and unenforceable. Therefore, the entire law had to fall as well.

Mr. Paxton, the Texas attorney general, whose office also filed a brief on Wednesday, said: “Congress meant for the individual mandate to be the centerpiece of Obamacare. Without the constitutional justification for the centerpiece, the law must go down.”

Whether that position will survive judicial scrutiny is another question. Nicholas Bagley, who teaches health law at the University of Michigan Law School, noted that only two lawyers signed the brief. That is highly unusual in a case with such a high profile, he said.

“This is a testament to the outrageousness of the Justice Department position, that no reasonable argument could be made in the statute’s defense,” Mr. Bagley said. “It is a truly indefensible position. This is just partisan hardball.”

Many legal scholars have also said that even before appellate judges wade into the more obscure pools of legal reasoning, they could reach a decision by addressing the question of congressional intent. If Congress had meant the erasure of the tax penalty to wipe out the entire act, such an argument goes, it would have said so.

If the Fifth Circuit overturns the O’Connor decision, there is no guarantee that the Supreme Court would take an appeal. The court has ruled on two earlier A.C.A. challenges, finding in favor of the act, although narrowing it.

Of course, the composition of the Supreme Court has since changed.

 

 

 

Millions already lose or change health plans every year

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Millions of Americans lose their health insurance plans every month, by leaving the job through which they got that coverage, Axios’ Bob Herman reports.

Why it matters: Critics and skeptics of “Medicare for All” worry about eliminating people’s existing coverage because most people are relatively satisfied with their employer-based plans.

  • But millions of workers and their families already switch or lose their insurance from their jobs.

By the numbers: More than 66 million Americans voluntarily quit their jobs, were laid off or otherwise separated from their employers in 2018, and that high turnover rate has continued into 2019, according to data from the Bureau of Labor Statistics.

Details: The BLS data does not measure whether separated jobs offered health insurance.

  • However, close to half of all private employers provide coverage to their workers, and more than 90% of companies with at least 100 employees offer health benefits.
  • It’s therefore reasonable to estimate that at least 2 million workers and their families lose or transfer to new commercial health plans every month.

The bottom line: Behavioral economics teaches that people don’t like to lose what they have, a concept known as “loss aversion.”

Go deeper:

 

 

 

 

Insurers, hospitals, physicians united in stance on ACA lawsuit

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Hospitals, physicians and insurer groups are united in wanting to preserve the Affordable Care Act and have defended it in briefs filed with the Fifth Circuit Court of Appeals.

The American Hospital Association, the American Medical Association and America’s Health Insurance Plans are among groups that are fighting a lower court ruling in Texas that struck down the law.

On the other side is the Department of Justice, which last month reversed an earlier opinion and sided with the Texas judge who ruled that without the individual mandate, the entire ACA has no constitutional standing.

WHY THIS MATTERS

The ACA has insured millions who otherwise may not have been insured, allowing them to get care when needed instead of going to the more expensive emergency room when they have a medical crisis.

Hospitals and physicians see less uncompensated care under the ACA.

Without the ACA, patients would no longer have protections for pre-existing conditions, children would no longer have coverage under their parents’ health insurance plan until age 26, insurers would no longer be held to the 85 percent medical loss ratio, 100 percent coverage for certain preventive services would cease and individual marketplace and subsidies based on income would be eliminated.

Also, federal funding for Medicaid expansion would end.

TREND

Republicans under President Trump have tried unsuccessfully to repeal and replace the law.

The lawsuit, brought by 19 Republican governors, puts the GOP in a political bind over supporting the repeal of a law that is popular with consumers and their constituents. President Donald Trump recently said Republicans would unveil an ACA replacement after the 2020 election.

Democrats are also facing a crisis within their party over healthcare as it becomes a priority issue in the presidential election. Some of the leading candidates, such as Senator Kamala Harris, support Medicare for all. The Medicare for All Act of 2019  has been introduced in the Democratic-led House of Representatives.

Veteran politician and attorney Earl Pomeroy said he believes the Texas versus United States appeal changes the political course for 2020. The entire MFA argument will move to the back burner because of the Texas lawsuit, he said.

“The fight is going to be trying to underscore the Congressional importance of the provisions of the ACA and enhancing them,” Pomeroy said. “I do not believe that supporting Medicare for all is an advantageous position for a Democratic candidate running in a district that is not a secure Democratic seat. I believe Kamala Harris will spend much of the campaign walking back her comments on health insurance.”

Pomeroy is a former member of the U.S. House of Representatives for North Dakota’s at-large district, a North Dakota Insurance Commissioner and senior counsel in the health policy group with Alston & Bird.

“The safe political ground is defending a law people have warmed up to,” he said. “All politics is local but all healthcare is personal. There is little risk tolerance in the middle class for bold experiments in healthcare.”

BACKGROUND

The lawsuit was brought by Texas and the 19 other Republican-led states, based on the end of the individual mandate. In February, U.S. District Court Judge Reed O’Connor agreed that the federal law cannot stand without the individual mandate because if there is no penalty for not signing up for coverage, then the rest of the law is unconstitutional.

Twenty-one Democratic attorneys general appealed and the House of Representatives has intervened to defend the ACA in the case.

Either outcome in the appeals court may see the case headed to the U.S. Supreme Court.

WHAT THE PROVIDERS AND INSURERS ARE TELLING THE COURT

In a court brief filed by the AHA, the Federation of American Hospitals, The Catholic Health Association of the United States, America’s Essential Hospitals, and the Association of American Medical Colleges urged the Fifth Circuit Court of Appeals to reject a district court decision they said would have a harmful impact on the American healthcare system.

“Those without insurance coverage forgo basic medical care, making their condition more difficult to treat when they do seek care. This not only hurts patients; it has severe consequences for the hospitals that provide them care. Hospitals will bear a greater uncompensated-care burden, which will force them to reallocate limited resources and compromise their ability to provide needed services,” they said.

In a separate friend-of-the-court brief, 24 state hospital associations also urged the Fifth Circuit to reverse, highlighting specific innovative programs and initiatives for more coordinated care.

The American Medical Association, the American College of Physicians, American Academy of Family Physicians, American Academy of Pediatrics and the American Psychiatric Association filed a brief. AMA President Dr. Barbara L. McAneny said, “The district court ruling that the individual mandate is unconstitutional and inseverable from the remainder of the ACA would wreak havoc on the entire healthcare system, destabilize health insurance coverage, and roll back federal health policy to 2009. The ACA has dramatically boosted insurance coverage, and key provisions of the law enjoy widespread public support.”

AHIP said the law impacts not only the individual and group markets, but also other programs such as Medicaid, Medicare and Part D coverage.

“Since its passage in 2010, the ACA has transformed the nation’s healthcare system,” AHIP said. “It has restructured the individual and group markets for purchasing private health care coverage, expanded Medicaid, and reformed Medicare. Health insurance providers (like AHIP’s members) have invested immense resources into adjusting their business models, developing new lines of business, and building products to implement and comply with those reforms.”

 

 

 

 

Obamacare fight obscures America’s real health care crisis: Money

https://www.politico.com/story/2019/04/03/obamacare-health-care-crisis-1314382

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The ceaseless battle over the 2010 law has made it difficult to address the high cost of American health care.

The Obamacare wars have ignored what really drives American anxiety about health care: Medical costs are decimating family budgets and turning the U.S. health system into a runaway $3.7 trillion behemoth.

Poll after poll shows that cost is the number one issue in health care for American voters, but to a large extent, both parties are still mired in partisan battles over other aspects of Obamacare – most notably how to protect people with pre-existing conditions and how to make insurance more affordable, particularly for people who buy coverage on their own.

That leaves American health care consumers with high premiums, big deductibles and skyrocketing out-of-pocket costs for drugs and other services. Neither party has a long-term solution — and the renewed fight over Obamacare that burst out over the past 10 days has made compromise even more elusive.

Democrats want to improve the 2010 health law, with more subsidies that shift costs to the taxpayer. Republicans are creating lower-cost alternatives to Obamacare, which means shifting costs to older and sicker people.

Neither approach gets at the underlying problem — reducing costs for both ordinary people and the health care burden on the overall U.S. economy.

Senate HELP Committee chair Lamar Alexander, the retiring Tennessee Republican with a reputation for deal-making, has reached out to think tanks and health care professionals in an attempt to refocus the debate, saying the interminable fights about the Affordable Care Act have “put the spotlight in the wrong place.”

“The hard truth is that we will never get the cost of health insurance down until we get the cost of health care down,” Alexander wrote, soliciting advice for a comprehensive effort on costs he wants to start by summer.

But given the partisanship around health care — and the fact there have been so many similar outreaches over the years for ideas, white papers and commissions — it’s hard to detect momentum. Truly figuring how to fix anything as vast, complex and politically charged as health care is difficult. Any serious effort will create winners and losers, some of whom are well-protected by powerful K Street lobbies.

And the health care spending conversation itself gets muddled. People’s actual health care bills aren’t always top of mind in Washington.

“Congress is looking at federal budgets. Experts are looking at national health spending and the GDP and value. And the American people look at their own out-of-pocket health care costs and the impact it has on family budgets,” said Drew Altman, the president and CEO of the Kaiser Family Foundation, which extensively tracks public attitudes on health.

But Congress tends to tinker around the edges — and feud over Obamacare.

“We’re doing nothing. Nothing. We’re heading toward the waterfall,” said former CBO director Doug Elmendorf, now the dean of the Harvard Kennedy School, who sees the political warfare over the ACA as a “lost decade,” given the high stakes for the nation’s economic health.

The solutions championed by the experts — a mix of pricing policies, addressing America’s changing demographics, delivering care more efficiently, creating the right incentives for people to use the right care and the smarter use of high-cost new technologies — are different than what the public would prescribe. The most recent POLITICO-Harvard T.H. Chan School of Public Health poll found the public basically wants lower prices, but not a lot of changes to how — or how much — they consume health care, other than spending more on prevention.

Lawmakers are looking at how to start chipping away at high drug prices, or fix “surprise” medical bills that hit insured people who end up with an out-of-network doctor even when they’re at an in-network hospital. Neither effort is insignificant, and both are bipartisan. While those steps would help lower Americans’ medical bills, health economists say they won’t do enough to reverse the overall spending trajectory.

Drug costs and surprise bills, which patients have to pay directly, “have been a way the public glimpses true health care costs,” said Melinda Buntin, chair of the Department of Health Policy at Vanderbilt University School of Medicine. “That information about how high these bills and these charges can be has raised awareness of health care costs — but it has people focused only on that part of the solution.”

And given that President Donald Trump has put Obamacare back in the headlines, the health law will keep sucking up an outsized share of Washington’s oxygen until and quite likely beyond the 2020 elections.

Just in the last week, the Justice Department urged the courts to throw out Obamacare entirely, two courts separately tossed key administration policies on Medicaid and small business health plans, and Trump himself declared he wants the GOP to be the “party of health care.” Facing renewed political pressure over the party’s missing Obamacare replacement plan, Trump last week promised Republicans would devise a grand plan to fix it. He backtracked days later and said it would be part of his second-term agenda.

Democrats say Trump’s ongoing assaults on the ACA makes it harder to address the big picture questions of cost, value and quality. “That’s unfortunately our state of play right now,” said Rep. Raul Ruiz (D-Calif.). “Basic health care needs are being attacked and threatened to be taken away, so we have to defend that.”

The ACA isn’t exactly popular; more than half the country now has a favorable view of it, but it’s still divisive. But for Republicans and Democrats alike, the new POLITICO-Harvard poll found the focus was squarely on health care prices — the cost of drugs, insurance, hospitals and doctors, in that order.

The Republicans’ big ideas have been to encourage less expensive health insurance plans, which are cheaper because they don’t include the comprehensive benefits under Obamacare. That may or may not be a good idea for the young and healthy, but it undoubtedly shifts the costs to the older and sicker. The GOP has also supported spending hundreds of millions less each year on Medicaid, which serves low-income people — but if the federal government pays less, state governments, hospitals and families will pay more.

Last week, courts blocked rules in two states that required many Medicaid enrollees to work in order to keep their health benefits, and also nixed Trump’s expansion of association health plans, which let trade groups and businesses offer coverage that doesn’t include all the benefits required under the ACA.

House Democrats last week introduced a package of bills that would boost subsidies in the Obamacare markets and extend that financial assistance to more middle-class people. The legislation would also help states stabilize their insurance markets — something that the Trump administration has also helped some states do through programs backstopping health insurers’ large costs.

These ideas may also bring down some people’s out-of-pocket costs, which indirectly lets taxpayers pick up the tab. These steps aren’t meaningless — more people would be covered and stronger Obamacare markets would stabilize premiums — but they aren’t an overall fix.

The progressive wing of the Democratic party backs “Medicare for All,” a brand new health care system that would cover everyone for free, including long-term care for elderly or disabled people. Backers say that the administrative simplicity, fairness, and elimination of the private for-profit insurance industry would pay for much of it.

The idea has moved rapidly from pipe dream to mainstream, but big questions remain even among some sympathetic Democrats about financing and some of the economic assumptions, including about how much of a role private insurance plays in Medicare today, and how much Medicare puts some of its costs onto other payers. Already a political stretch, the idea would face a lot more economic vetting, too.

The experts, as well as a smattering of politicians, define the health cost crisis more broadly: what the country spends. Health care inflation has moderated in recent years; backers of the Affordable Care Act say the law has contributed to that. But health spending is still growing faster than the overall economy. CMS actuaries said this winter that if current trends continue, national health expenditures would approach nearly $6 trillion by 2027 — and health care’s share of GDP would go from 17.9 percent in 2017 to 19.4 percent by 2027. There aren’t a lot of health economists who’d call that sustainable.

And ironically, the big fixes favored by the health policy experts — the ones that Alexander is collecting but most politicians are ignoring — might address many of the problems that keep aggravating U.S. politics. If there were rational prices that reflected the actual value of care provided for specific episodes of illness and treatment, instead of the fragmented system that largely pays for each service provided to patients, then no medical bill would be a surprise, noted Mark McClellan, who was both FDA and CMS chief under the President George W. Bush and now runs the Duke-Margolis Center for Health Policy.

“But taking those steps take time and will be challenging,” McClellan noted. “And they’ll be resisted by a lot of entrenched forces.”

 

 

 

Trump is reading the GOP base wrong on the Affordable Care Act

https://www.axios.com/trump-reading-base-wrong-aca-b6e2521c-d386-4c94-81e8-b018a6aaf3b1.html?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosvitals&stream=top

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The only plausible explanation for President Trump’s renewed effort through the courts to do away with the Affordable Care Act, other than muscle memory, is a desire to play to his base despite widely reported misgivings in his own administration and among Republicans in Congress.

Reality check: But the Republican base has more complicated views about the ACA than the activists who show up at rallies and cheer when the president talks about repealing the law. The polling is clear: Republicans don’t like the ACA, but just like everyone else, they like its benefits and will not want to lose them.

The big picture: About three quarters of Republicans still have an unfavorable view of the ACA, and seven in 10 say repealing the law is a top health priority for Congress — higher than other priorities such as dealing with prescription drug costs. And yes, 7 in 10 Republicans still want to see the Supreme Court overturn the law.

But as the chart shows, majorities of Republicans like many elements of the ACA —especially closing the “donut hole” in Medicare prescription drug coverage (80%), eliminating copayments for preventive services (68%), keeping young adults under 26 on their parents’ plans (66%) and subsidies for low and middle-income households (63%).

  • Nearly half of Republicans want the Supreme Court to keep the protections for pre-existing conditions (49%), and even more show general support for the pre-existing conditions protections (58%).
  • During the repeal and replace debate in 2017, even Republicans were nervous to hear that these sorts of things would go away. The 2020 campaign would drive home to the public, and to Republicans, what they have to lose — and it would become especially real to them if the 5th Circuit Court of Appeals upholds the ruling striking down the ACA.

Maybe Republicans would forget about these lost benefits if they could agree on a replacement plan they liked? But there isn’t one, and many of the ideas thought to be elements of one — such as cutting and block granting both Medicaid and ACA subsidies — are non-starters with Democrats and moderate Republicans on Capitol Hill. They’re unpopular with the public, too. 

The bottom line: It is widely accepted that a renewed debate about repeal hands Democrats a powerful new political opportunity. Deeper in the polling, it’s also clear that’s it’s more of a mixed bag for Republicans than President Trump may realize.  

 

 

 

So, about being the “party of health care”

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GOP leaders are trying their best to put a lid on President Trump’s talk of a new and wonderful health care plan that would define the Republican Party for 2020.

“Not any longer,” Senate Majority Leader Mitch McConnell said yesterday when asked whether he and Trump differ on health care.

  • McConnell said he spoke to Trump Monday and “made it clear to him that we were not going to be doing that in the Senate.”
  • RNC Chair Ronna McDaniel and Trump campaign manager Brad Parscale also “tried to tell the president they could not understand what he was doing,” The New York Times reports.

Rhetorically, Trump has kicked the can past 2020, just after pushing his administration to dive back into — and escalate — the legal fight that hurt Republicans so badly in 2018.

  • “I wanted to delay it myself,” Trump said in the Oval Office yesterday, denying that McConnell forced his hand. “I want to put it after the election, because we don’t have the House.”

Reality check: It’s still the Justice Department’s position that the courts should strike down the Affordable Care Act. As long as this lawsuit is still active — and that will be a while — it’ll be accurate for Democrats to say on the campaign trail that Trump is trying to end protections for pre-existing conditions.

  • In the short term, Trump’s rhetorical punt to 2021 may dampen the intensity of questions about how Republicans would rebuild a new system for individual coverage — questions the party has struggled to answer for the past 9 years.
  • But in the end, the only good way out is for the Trump administration to lose this case.