End of Obamacare: What Happens When Trump Repeals the ACA?

The GOP has hated what they’ve coined “Obamacare” from the start. Obamacare, also known as the “Affordable Care Act,” certainly has its kinks. For instance, high deductibles for its Bronze plan users make up about 20 percent of its customers. Nevertheless, the fact of the matter is that it has helped millions of people, most of whom are low-income or working class, who otherwise would not have health insurance. It has done this without raising taxes.

President Trump promised to repeal Obamacare as soon as he was elected. When he finally took office, he again promised to repeal Obamacare. Initially, indications from the GOP were that a repeal would occur within the first 100 days of Trump’s presidency. The repeal seems to have lost its initial steam.Obamacare

Possible Timeline

The Senate and House of Representatives started the repeal process in earnest. In January, both the House and the Senate passed a budget resolution that set the stage for introducing a bill that would strip major provisions from Obamacare.

In order to repeal Obamacare, the next step is for President Trump to the sign the budget resolution bill while simultaneously introducing a bill to replace key provisions of the Affordable Care Act, but the GOP seems to have faltered at this step. What they initially wanted to happen swiftly is now being pushed back to the end of 2017, primarily because the party is still trying to figure out what to replace Obamacare with.

Even when a replacement for Obamacare is presented and signed by President Trump, there will be delays built into the repeal bill in order to ease the transition. No one knows how long the delay will take, but it’s presumed a delay of two to four years is likely. For this reason, major changes are unlikely to affect Affordable Care Act consumers right away.

Why Delay Repeal?

For one, there are many parts of Obamacare that are popular. Under Obamacare, insurance companies cannot deny coverage based on a preexisting condition, and children stay on their parents’ plan until they turn 26. These provisions are popular among the majority of Americans.

Moreover, the Affordable Care Act has insured over 20 million people who otherwise wouldn’t have health insurance. Republicans have been bombarded with constituent concerns about the potential loss of coverage. There are stories of everyday Americans who say they would’ve died had it not been for the Affordable Care Act.

How Will Repealing Obamacare Affect Americans?

Under Obamacare, millions of Americans are insured and can’t be turned away despite pre-existing conditions. Senior citizens pay less for Medicare coverage and for their prescription drugs. Many Americans receive free contraceptives, mammograms, colonoscopies and cholesterol tests, Repealing Obamacare could threaten all these advantages.

For instance, “repairing” Obamacare could mean higher premiums and deductibles for those enrolled on Medicare, most of whom are on fixed incomes. Companies with at least 50 employees may no longer be required to provide affordable insurance to their employees who work more than 30 hours a week. This could affect millions of employees who work at least 30 hours per week but less than 40 hours. In addition, companies will no longer have to keep children on their parents’ health insurance plans until they turn 26.

Finally and perhaps most devastating, a repeal on Obamacare would no longer require nearly all Americans to obtain insurance or pay a penalty. Millions of Americans covered by the Affordable Care Act may be dropped by their insurance carrier with no way of obtaining alternative insurance.

Aetna Health Insurance Lied About the ACA and Triggers Anti-Trust Claim

The Affordable Care Act (ACA), also known as Obamacare, has been an extremely contentious bit of legislation.  The future of the act is currently extremely uncertain, President Trump signed an executive order his first day in office which–while vague enough to be nearly symbolic in nature–still serve to limit the law to some extent.  However, the law has also been at the heart of a recent court decision which put a stop to a $37B dollar merger between two health insurance behemoths.

Aetna ACA

The decision comes as part of the ongoing anti-trust case over the merger between Aetna and Humana–two of the five biggest health insurance companies in the nation.  The announcement of the merger agreement of these two companies in 2015 led to an immediate investigation, and ultimately led to the Department of Justice, eight different states, and the District of Columbia all filing lawsuits saying the merger was anti-competitive.

Aetna obviously disagreed and between the government and them they managed to produce millions of pages of arguments and evidence for each side as to the exact economic impact of the merger.  Aetna’s dedication to the issue is no surprise, beyond the desire to see the merger go through they had some serious skin in the game–a $1B dollar fee to be paid to Humana if the merger fell through.

What Did Aetna Claim about the Affordable Care Act (a.k.a. Obamacare)?

One of the most contentious arguments revolved around the ACA itself.  The Affordable Care Act created a public forum through which the public could purchase insurance plans, although it did allow insurance companies to offer alternative plans outside of this public market.  It also requires insurers interested in providing plans through this market to comply with certain obligations.  Just before the lawsuit began, Aetna withdrew from all but four of the states it offered insurance policies through the ACA.

Aetna said that they withdrew because the plans they offered under the ACA were not making them money.  The government argued that they did it as part of strong arm tactic.  They said that Aetna, knowing the impact it would on public perception of the ACA, threatened to leave the program if the merger wasn’t approved

There was a fair bit of evidence that many of the ACA programs were, in fact, making Aetna quite a bit of money.  However, the government struggled to produce evidence showing Aetna’s actual motivations in leaving the ACA programs.  That is, they were having trouble, until they produced an email from Aetna’s Chief Executive to the Department of Justice itself specifically stating that their participation in the ACA hinged on them being allowed to merge with Humana.  From there, they went on to produce conversations with Aetna officers where they heavily suggested, and one time outright stated, that if they weren’t happy with the merger results the government wouldn’t be happy with their involvement in the ACA.  They even found emails where, after a series of emails explaining that the withdrawal was to strengthen their position in their upcoming anti-trust lawsuit, Aetna executives actively mentioned they were trying to avoid leaving a paper trail indicating the reason they withdrew from the ACA and making efforts to shield any such evidence from being produced in a lawsuit.

A few weeks ago, in a 156 page monster of a ruling, the court finally agreed with the government and part of that ruling was based on the fact that Aetna had misled the public–and attempted to mislead the court–as to the motivations behind leaving the ACA program.  So in order to understand how, let’s first discuss exactly how anti-trust law works before looking at how Aetna’s deception as to the ACA effected their case.

How Do Anti-Trust Lawsuits Work?

Anti-trust law is basically the government trying to keep companies from becoming such an enormous market presence that they prevent other businesses from competing with them.  If you’ve ever played Monopoly you get the idea.

The government pays particular attention to health insurance companies in anti-trust cases because of how Medicare operates and specifically how the government pays insurance companies to provide insurance supplements to cover gaps for seniors on Medicare.  Where health insurance companies have huge enough market presence, it leaves seniors paying fees that make these gap-filler plans inaccessible.

In order to establish that a merger would violate anti-trust law, the government has to show that such a merger would “substantially lessen competition, or tend to create a monopoly.”  They don’t need to show that it will absolutely happen, but just that there is a probability that a merger would be anti-competitive.  Establishing this, as you could probably tell from the millions of pages of evidence and a 156-page ruling, is generally an incredibly complicated and in-depth process.  Where the government can show such a probability, there is a presumption that a merger is illegal.  However, a defendant in an anti-trust case, such as Aetna, can produce evidence to rebut such a presumption.

There was obviously an enormous amount of evidence here as to the economic impact of the merger, evidence supporting both sides.  However, the question ultimately came down to how much of the market Aetna would end up controlling–and that’s where their game-playing around their motivations behind leaving the ACA came into play.

The Repercussions of Aetna’s Lie

Aetna’s whoppers about the ACA weren’t the only or the deciding factor in the court’s ruling.  However, they were influential enough to one of the few elements they specifically mentioned in the summary of their ruling out of the over a hundred pages of evidence that ruling discusses.

So what did Aetna’s dishonesty actually mean for their case?  The government argued that because Aetna misled the public, the court had to ignore the fact that Aetna had in fact left the markets for those states and only consider Aetna’s market presence as it was before they withdrew.  The court didn’t buy this, however they still took Aetna’s deception into account.  They looked to the future to consider whether Aetna may expand into those markets in the future.  Given that Aetna was making money in those and only withdrew as part of a strong arm tactic, they felt it very likely they’d return to the markets they left after the merger completed.  They felt this true in Florida, where the ACA markets were actually found to be the only profitable part of Aetna’s business–a situation which led to confused emails from Aetna officials out of Florida–these emails received a hasty response to only discuss the matter over the phone.

With all this in mind, the court felt it was likely that Aetna would simply return to the markets it had abandoned post-merger.  As discussed above, likely is all a court needs in an anti-trust case.  Thus, in a very real way, Aetna’s approach to the ACA had a huge hand in killing their chances of a successful merger.

What Does This Mean on a Broader Level?

First and foremost, the most obvious lesson here is that judges don’t particular care for hiding evidence.  So much so that it took what could have been a fairly small issue and turned into an entire section of the court’s ruling.  However, the reality of the situation also impacts some of the arguments surrounding the ACA.

Just weeks ago, Aetna’s withdrawal was used as evidence to support the end of the act.  However, when the reality is a more profitable one than Aetna led the country to believe, it certainly muddies the water on the issue.  We’re almost certainly going to see a lot of changes to the ACA in coming months and years.  However, it’s important that we look at the facts as they are when discussing the issue–and not spin on the topic such as Aetna’s misrepresentations.

Trump Faces a Record Amount of Lawsuits for a President

In a mere two-week period, Trump faces a slew of lawsuits that already amount to 10 times the average of the three presidents who preceded him.  Over 50 lawsuits have been filed and, at the rate he’s going, it doesn’t look like it will slow down any time soon.  Plaintiffs from 17 different states include religious groups, state attorneys general, doctors, professors, students, refugees seeking help, and Iraqis who have worked for the U.S. military.  While most lawsuits are in reference to Trump’s immigration ban arguing civil rights violations, the President is also facing a financial conflict of interest suit and a lawsuit regarding federal funding.

Trump Lawsuits

Travel & Refugee Ban

Civil rights cases starting flying out of the wood works once Trump signed his executive order restricting travel.  The immigration ban not only restricts access into the United States for those from select black-listed countries, but it halts entrance for refugees seeking political asylum.  Although a federal judge has temporarily blocked the executive order from taking effect, Trump has appealed the lawsuit.  Here’s a closer look at what the executive order will do if Trump prevails his appeal:

  • Suspend the entire U.S. refugee admissions system for at least 120 days.
  • Suspend the Syrian refugee program indefinitely.
  • Ban entry from 7 majority-Muslim countries, including Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for at least 90 days. This includes dual-nationals that hold passports from other countries as well.
  • Prioritize refugee claims on the basis of religion, with a strong implication that non-Muslim religions would get preference.
  • Lower the total number of refugees to be accepted in 2017 from any country.

The lawsuits allege violations of the 1st, 5th and 14th Amendments, citing religious inequality, due process and equal protection violations, denials of asylum, as well as discriminatory visa processing practices.  Here’s a closer look at the expanding list of who’s suing Trump based on this executive order:

  • Washington state has brought suit on a national level and claims the ban violates both the 1st Amendment and the Equal Protection Clause of the Constitution. The state of Minnesota joined in on the lawsuit, as well as 16 other states who have joined as friends of the court to argue against the ban. At least 127 tech companies have also filed briefs with the U.S. Court of Appeals for the Ninth Circuit in opposition to the ban.
  • The ACLU brought multiple lawsuits by different plaintiffs arguing the ban discriminates against Muslims. Among the plaintiffs are two Iranian national University of Massachusetts-Dartmouth associate professors were detained while returning from an engineering conference and an Iraqi soldier (with a valid visa) was detained in New York while trying to join his family.
  • The Council on American Islamic Relations also brought suit alleging the ban discriminates against Muslims and is unconstitutional on 1st Amendment grounds because it disfavors groups based on their religious faith.

Conflicts of Interest

We’ve been hearing about the numerous ways Trump’s business dealings present conflict of interest issues since his election.  The Citizens for Responsibility and Ethics in Washington (CREW) brought a lawsuit against Trump alleging he violated the Emoluments Clause of the Constitution, which basically says those holding office can’t profit from their power in office.

CREW’s lawsuit alleges because of the payments Trump receives from foreign organizations as through his many businesses, he’s profiting from his presidency.  The argument rests on the notion that these profits limit his ability as President to make unbiased decisions for the benefit of the United States over the betterment of himself.  Although, there’s a good argument CREW doesn’t have standing to win their case, it doesn’t negate the legitimate conflicts of interest.

Withholding Federal Funding

Cracking down on sanctuary cities is a campaign threat Trump followed through on.  In addition to his immigration ban, Trump issued an executive order that would cut federal funding from sanctuary cities that refuse to cooperate with federal immigration officials.  San Francisco, a sanctuary city, has taken a stance and brought a lawsuit arguing the order violates the 10th Amendment.  While the federal government can put conditions on the money they give out, the conditions cannot be coercive, which gives San Francisco a strong argument.

What Happens When a President is Sued?

Qualified immunity can be tricky.  On a general level, public officials are protected from lawsuits alleging they violated a plaintiff’s rights.  Exceptions come into play when there’s an allegation that the official violated a clearly established statutory or constitutional right.  If cases were brought against a president for actions not related to their official capacity, the case would most likely be postponed until their term is over.

There are numerous lawsuits pending against Trump that were filed before his inauguration and don’t relate to his presidency.  The fraud lawsuit regarding Trump University was settled, but most of the other cases will resume once Trump’s time in office is over.   All of the cases filed within the past couple of weeks relate to Trump’s actions as President and pose constitutional violations, so they’ll be able to move forward through the judicial process.

Ethics Rules Violated When White House Endorsed Ivanka Trump’s Products

Less than a month into his Presidency and Donald Trump has more scandals under his belt than President Obama did during his eight years in office.
Before taking office, Trump was known for his Trump Organization, a privately owned international conglomerate. The “Trump” brand is comprised of more than 500 business entities of which President Trump is either the sole or principal owner. His daughter, Ivanka, has a clothing line featured in various department stores across the U.S. Until recently, it included Nordstroms.

After Nordstroms decided to drop Ivanka Trump’s clothing line, President Trump’s senior advisor Kellyanne Conway discussed Nordstrom’s decision in a live Fox News interview. Conway took her air time to talk up Ivanka’s line, claiming that she owned many Ivanka Trump pieces and claimed the line was “wonderful.” She then went on to give Ivanka what she described as a “free commercial,” exclaiming, “Go buy it today, everybody. You can find it online.”

What Ethics Rule was Violated?

There’s a rule in the Code of Federal Regulations that states a federal employee shall not use his or her office “for the endorsement of any product, service or enterprise.”

There’s no question that Conway endorsed Ivanka Trump’s brand in her off-the-cuff statement, but the comments were further troubling for another reason. As Trump’s senior and one of his most visible advisors, Conway’s “free commercial” had the appearance of the White House, and by extension the President, telling people to buy Ivanka Trump’s clothing line. As part of the Trump Brand, President Trump stands to gain financially if people heed Conway’s advice and start buying Ivanka Trump’s product.

Calls for Ethical Investigation

Public citizens and Citizens for Responsibility and Ethics immediately asked for an investigation of the Office of Government Ethics (OGE). The OGE is a federal agency whose job it is to help the President and executive branch avoid conflicts of interest. It was created in 1978 following President Nixon’s Watergate scandal. The OGE can investigate and make recommendations based on possible ethics violations, but any sanctions or subsequent punishment is at the discretion of the White House.

It is important to note that an ethics violation of this nature is unprecedented, although former Chief Counsel to Vice President Biden claims this type of violation would have gotten someone fired under the Obama administration.

White House Response

According to a former lawyer and ethics officer at the Federal Election Commission, the typical ethics rule violation will result in a letter of reprimand. Termination is also an option. In extreme but rare cases, a violation could be referred to the Justice Department.

In this case, White House Press Secretary Sean Spicer announced that Conway was “counseled” for her comments, but would not elaborate. In an interview on Fox News, Conway said President Trump supported her 100 percent. “In fact, it was a very heartening moment,” Conway said. “All I can say to America’s women is, at some point in your life, you ought to have a boss who treated me the way the president of the United States treated me today.”

Given her comments and the potential Trump’s brand has to gain after Conway’s self-described free commercial, it’s safe to say the President elected not to punish Conway. We should probably question whether she was praised, encouraged or rewarded.

Has President Trump Committed an Ethical Violation?

In addition to the above-referenced federal ethics code, a lesser known section restricts the President and Vice President from using their office to influence or make threats about an employment practice of any private company. In other words, President Trump cannot misuse his authority to bully private companies or influence how they do their business.

During a press conference, Spicer claimed Nordstroms’ decision to discontinue Ivanka Trump’s line was unacceptable because it was an attack on Trump’s daughter. Trump expressed his unhappiness with Nordstroms for treating his daughter so unfairly. The comments taken together can be interpreted as a violation of federal ethics.

Time will tell whether Trump faces any backlash for the White House’s position, or if Conway’s comments will be overshadowed by another scandal in the coming days.

Trump’s Immigration Ban: Domestic and International Rights at Threat

Banning a whole class of individuals based on their nationality is not only hateful, but legal professionals around the globe agree Trump’s immigration ban has a number of constitutional and international human rights issues to overcome.  The immigration ban not only restricts access into the United States for those from select black-listed countries, but it temporarily stops entrance for refugees seeking political asylum and permanently stops entrance for Syrian refugees.

Trump Immigration Ban

First Amendment

The Establishment Clause of the 1st Amendment guarantees religious equality and restricts the government from establishing (or supporting) any one particular religion.  While Trump’s team insists the immigration ban is not a blanket ban targeting Muslims, it’s hard to refute that argument based on Trump’s previous campaign statements.

On its face, the text of the order doesn’t exclude Muslims, but the text of the ban does state priority is to be given to refugees of a minority religion.  Since the ban affects 7 Muslim-majority nations, this language strongly indicates a preference for non-Muslim religions.  I can’t stress enough how much this practice would be in direct contradiction to the establishment clause.

Fifth & Fourteenth Amendment

Trump’s executive order singles out individuals based on both their nationality and religion and encourages discriminatory visa processing procedures, all of which raise discrimination issues that violate due process rights.

Due Process rights under the 5th and 14th Amendment require fair treatment, both procedurally and substantively.  Both the way the law pans out and the way the law is written matter.  Not only must the government provide fair and sufficient notice before denying someone their life, liberty, and property, the government cannot enact laws it doesn’t have the authority to enact.  While executive orders have been traditionally accepted, presidents don’t have the authority to enact laws that are discriminatory and contrary to the principles of the Constitution and laws of our nation.

Trump’s blanket ban provides no processes or procedures for denying entrance into the U.S., which left many stranded, including legal visa holders.  There’s a strong argument those travelers were denied their procedural due process rights.  They were given no notice or chance to make alternative travel plans.  Attorneys scrambled to file writs of habeas corpus demanding that, as asylum seekers on U.S. soil, the government was required under the Immigration and Nationality Act to at least grant asylum hearings, something the order didn’t allow for.

U.N. Experts Say Ban Violates International Human Rights Obligations

In the midst of lawsuit upon lawsuit demanding a halt on the immigration ban for constitutional violations, a group of U.N. human rights experts have weighed in and say the United States is now in violation of its international human rights obligations.  Under non-refoulement principles, the U.N. has long held that nations cannot expel or return a refugee to an area where their life or freedom are threatened.

Will the Ban Hold Up in Court?

After multiple lawsuits were filed, judges across the country issued injunctions blocking certain aspects of the executive order.  The state of Washington filed suit on the order as a whole and U.S. District Judge James Robart blocked the order in its entirety.  Although Trump appealed the decision, normal screening procedures commenced and will remain in effect until a decision is handed down.

Despite Trump’s offensive tweets that questioned Judge Robart’s opinion, Trump seems to be a minority on this one.  Sixteen other state attorney generals have joined the lawsuit.  Massachusetts, New York, Pennsylvania, California, Connecticut, Delaware, Illinois, Iowa, Maryland, Maine, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and the District of Columbia have filed a brief as “friends of the court” to argue against the ban.  At least 127 tech companies have also filed briefs in opposition to the ban.

Trump cited a need to protect our nation from terrorist threats as the basis for the executive order, but it’s arguable the ban will do nothing to actually prevent future attacks.  Media attention has focused on the fact that none of the most recent attacks in the U.S. have originated from the countries on Trump’s list.  Certainly, national security interests can undoubtedly outweigh constitutional protections, but that should only be on a case-by-case basis and not a blanket ban based on nationality.  While courts traditionally have given the executive branch great leeway when it comes to immigration policy, it’s not likely this particular order will pass constitutional muster.



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