U.S. federal judge rules Obamacare unconstitutional
A U.S. federal judge in Texas ruled on Friday that the Affordable Care Act, commonly known as Obamacare, is unconstitutional, a decision that was likely to be appealed to the Supreme Court.
U.S. District Judge Reed O'Connor in Fort Worth agreed with a coalition of 20 states that a change in tax law last year eliminating a penalty for not having health insurance invalidated the entire Obamacare law.
O'Connor's decision was issued the day before the end of a 45-day sign-up period for 2019 health coverage under the law.
About 11.8 million consumers nationwide enrolled in 2018 Obamacare exchange plans, according to the U.S. government's Centers for Medicare and Medicaid Services.
The coalition of states challenging the law was led by Texas Attorney General Ken Paxton and Wisconsin Attorney General Brad Schimel, both Republicans.
Republicans have opposed the 2010 law, the signature domestic policy achievement of President Donald Trump's Democratic predecessor Barack Obama, since its inception and have repeatedly tried and failed to repeal it.
The White House hailed Friday's ruling, but said the law would remain in place pending its expected appeal to the Supreme Court.
"Once again, the president calls on Congress to replace Obamacare and act to protect people with preexisting conditions and provide Americans with quality affordable healthcare," White House spokeswoman Sarah Sanders said in a statement.
In June, the Justice Department declared the healthcare law's "individual mandate" unconstitutional in federal court. The decision was a break with a long-standing executive branch practice of defending existing statutes in court.
A year ago, Trump signed a $1.5 trillion tax bill that included a provision eliminating the individual mandate.
Chief Justice of California Supreme Court quits GOP over Kavanaugh
Chief Justice of California Tani Cantil-Sakauye has reportedly renounced her Republican party registration and re-registered as a no-party-preference voter, citing now-Supreme Court Justice Brett Kavanaugh.
Cantil-Sakauye made the comments in a phone interview on Thursday toCALmatters, a nonprofit news organization, saying that she had been thinking about Kavanaugh's September confirmation hearing.
"I've been thinking about it for some time," Cantil-Sakauye told the news outlet of her decision. She said that she spoke with her husband and friends about the hearing and their conclusion was that "you didn't leave the party. The party left you.
Christine Blasey Ford, a California professor,testified before Congress in Septemberthat in 1982, Kavanaugh sexually assaulted her. Kavanaugh, who also testified, strongly denied it. He was narrowlyconfirmedin October by the Senate to the Supreme Court in a 50-48 vote.
"I felt compelled to make a choice now. It better suits what I do and how I approach issues," Cantil-Sakauye told the news outlet, adding that she has become displeased with the GOP's direction nationally and in her home state.
Cantil-Sakauye, 59, was tapped by then-Gov. Arnold Schwarzenegger, a Republican, in 2011 to be the state's top judge. She is the first Asian-Filipina American and the second woman to serve as chief justice of California's Supreme Court, according to herofficial biography.
Related: Brett Kavanaugh sworn in as Supreme Court Justice
Cantil-Sakauye previously excoriated President Donald Trump for being as being harmful to the "rule of law" because of his attacks on judges.
"The people uttering those are doing damage, short-term and long-term, to courts, to the rule of law," Cantil-Sakauye said earlier this week.
She was referring to questions regarding Trump's statement last month that a ruling against the administration's immigration policy was made by "an Obama judge."
U.S. Supreme Court Chief Justice John Roberts also rebutted Trump's remarks at the time in a rare statement, saying, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them."
Emails Show Trump Administration Was Told Obamacare Ad Cuts Could Hurt Enrollment
One projection showed 102,000 fewer sign-ups without TV advertising.
The Trump administration last year eliminated television advertising for HealthCare.gov despite projections suggesting that Obamacare enrollment would fall by more than 100,000 as a result, newly disclosed government emails show.
The decision to cut television advertising, announced in August 2017, was part of a larger and dramatic cut to outreach efforts for the federal government’s insurance website, which is part of the Affordable Care Act. At the time, administration officials said they had no reason to believe those reductions, including the end of TV advertising, would cause fewer people to sign up.
But in a series of email conversations last year, analysts at a private contractor and senior staff at the agency in charge of HealthCare.gov discussed an econometric model designed to predict the likely effect of changes to the advertising budget.
Weeks before the announcement of the cut, one of the analysts cited a prediction that enrollment would fall by 102,029 without television spots promoting HealthCare.gov and the availability of coverage on the site. The estimate, which the analyst described as “very conservative,” covered just a portion of the advertising cuts.
Many experts believe the cumulative effect of these steps over the past two years helps explain why the number of uninsured Americans is edging back up after hitting a record low during the Obama administration and why sign-ups at HealthCare.gov this year are lagging last year’s pace, although open enrollment doesn’t end until Saturday.
What The Emails Say
The emails, which the left-leaning watchdog group Democracy Forward obtained through the Freedom of Information Act and then provided to HuffPost, start in January 2017, when Trump became president. One of his administration’s very first moves was to cut off advertising for the remainder of the 2017 open-enrollment period, which still had a few days to go.
That turned out to be a harbinger. At the end of August, the administration announced it was wiping out nearly the entire promotional budget. Instead of allocating $100 million, as the Obama administration had done for the final year of enrollment it was overseeing, the Trump administration would spend just $10 million. It would also be focusing exclusively on digital advertising and outreach, with no funding at all for television.
At the time, officials at the Centers for Medicare & Medicaid Services (CMS) said that they were simply bringing the advertising budget in line with other, more established programs ― and that everybody knew about the new markets already.
Officials also said the decision would not hurt enrollment, distributing a fact sheet with the announcement that said, “No correlation has been seen between Obamacare advertising and either new enrollment or effectuated enrollment.”
On a conference call with reporters, in response to a question about whether the Department of Health and Human Services (which includes CMS) had studied the efficacy of advertising, an official said, “We haven’t done a specific study related to the public awareness of the program.”
But Weber Shandwick, the public relations firm handling HealthCare.gov advertising, had built an econometric model to assess the effects of different advertising methods, such as text messaging, radio spots and digital ads. The model came up in multiple discussions between CMS senior staff and Weber Shandwick analysts.
In a March 23 email, for example, Chris Koepke, a career CMS staffer in charge of the strategic marketing group, wrote to Weber Shandwick analysts to ask if there had been “any success noodling on the Young and Healthy question and the econometric model? We’re getting very close to needing to answer questions in that area.”
In April, Koepke wrote a group email with the subject “Updated Econometric Modeling Deck.” In that message, Koepke wrote, ”Hi everyone – I definitely want to dive into a few things more. But, I’m going to send a few one off questions I’d love answered asap as I’m getting a lot of budgeting questions right now.”
There are several other instances of both CMS and Weber Shandwick staff talking about the model and references to requests for information from political appointees who had decision-making responsibility over Affordable Care Act implementation. (One email addressed to Brian Colas, former chief of staff to CMS administrator Seema Verma, begins, “Brian, as we discussed, this is the deck.”)
But the most telling discussions are probably a series of communications starting in late July about how to allocate advertising funding for 2018.
In one email, Seth Levin, head of the HealthCare.gov account at Weber Shandwick, wrote, “See the attached chart. ... I then looked at the non-tv plan … The difference is 102,029 enrollments. This is likely a very conservative number, and Greg [presumably another Weber Shandwick analyst] noted the impact could be much more significant.”
Emails in this exchange also include some references to a spreadsheet with the file name “Television v. No Television.xlsx,” although the spreadsheet itself was not included in the Freedom of Information Act disclosure.
What The Emails Mean
All of the emails include large swaths of redacted material, making it difficult to decipher exactly what they show. But Joshua Peck, who was chief marketing officer for HealthCare.gov during the Obama administration, reviewed the emails and said the significance should be clear to anybody who has worked on Affordable Care Act implementation.
“This email shows us that when asked what would happen if the same money budgeted for TV was instead spent on other types of advertising,” Peck said, referring to the message on TV ad projections, “they were told, very conservatively, at least 100,000 fewer people would enroll.”
Peck, who is a co-founder of the nonprofit organization Get America Covered, went on to note that because the Trump administration was wiping out nearly all advertising, not just television, the cumulative effect was likely much greater than 100,000. At the time of the announcement, he published an independent analysis predicting that enrollment would end up more than 1 million lower than it would have been if the ad budget had held steady.
And although Peck said it’s impossible to tell exactly who at CMS had seen the Weber Shandwick analysis, he said the thread “directly contradicts the statement HHS made ... about not having any evidence of any correlation between the impact of outreach. When they made that statement, they were aware or could have easily discovered that there is abundant evidence of its impact.”
Last week, a CMS spokesperson responded to HuffPost’s questions about the analysis by saying there was no clear relationship between advertising and enrollment. (Weber Shandwick referred questions to CMS.) The spokesperson noted, correctly, that overall enrollment had actually fallen in 2017, even though the Obama administration had put more money into promotion of the program that year, before rising back up in 2018, despite Trump’s cut.
“When allocating funds for open enrollment advertising, the results of the prior two years were considered,” the spokesperson said.
But total enrollment is a function of many forces, including everything from the changing price of coverage to trends in job-based insurance, and the administration had additional reasons to think less advertising would be a force in the direction of lower enrollment.
After studying the effects of outreach efforts in Kentucky, researchers at the Wesleyan Media Project concluded that less advertising could lead to “weaker enrollment and a worsening risk pool for insurers.” An internal study that the Obama administration commissioned found that advertising played a significant role in about one-third of both re-enrollments and new sign-ups at HealthCare.gov and that television had been especially effective when it worked in tandem with other forms of advertising.
And after enrollment dipped for 2017, analysts went back to compare who signed up and when ― and concluded that those cuts to last-minute advertising, right after Trump took office, likely played a big role.
“The reason outreach and advertising matter is that there is a lot of turnover in the marketplace,” said Larry Levitt, senior vice president at the independent nonprofit Henry J. Kaiser Family Foundation. “Each year, millions of marketplace enrollees become eligible for employer-based insurance or Medicaid as their circumstances change. Million more people become eligible for marketplace coverage on an annual basis, but they don’t necessarily know it.”
What The Trump Administration Wants
Trump administration officials bristle at the suggestion that they want the Affordable Care Act to unravel. “I take exception to the claims that we are trying to sabotage Obamacare,” Verma said in a speech this year. “Obamacare was failing long before Donald Trump became president.”
Few informed observers would dispute that problems associated with the Affordable Care Act have a lot to do with both its design and the decisions the Obama administration made while it was running the program.
But since taking office, Trump and his lieutenants have refused to defend the law in court, eliminated rules that steer people away from junk plans and used Affordable Care Act promotional funds to finance ads critical of the program. They also cut off critical funding for state-run insurance programs in Minnesota and New York, restoring the payments only after those states sued.
And although Trump and his allies in Congress failed to pass legislation repealing the Affordable Care Act outright, the tax cut they enacted in late 2017 zeroed out the individual mandate, the financial penalty for people who decline to get insurance when the law deems it affordable.
There’s now a lot of debate over how much of an effect the mandate actually has ― and just how all the other influences on the market will blend together. But as of this week, with open enrollment about to end, enrollment at HealthCare.gov was running 11.7 percent behind last year’s pace, with enrollment among new consumers down 19.7 percent.
Is it more important for the new Democratic majority in the House to focus on the president’s possible impeachment or to focus on policy areas where they can work with the president and his fellow Republicans?
The president's possible impeachment - 30.8%
Policy areas where they can work together with fellow Republicans - 69.2%