Trump’s promise to ‘implode’ Obamacare key to cities’ legal fight to preserve law

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Opponents of President Trump’s effort to expand access to cheap plans to compete with Obamacare aim to use Trump’s rhetoric on Obamacare against him in court.

A group of cities filed a federal lawsuit on Thursday that said Trump is violating the Constitution with a series of moves that the litigants claim are part of a campaign to sabotage Obamacare. The group points to a litany of statements and tweets from Trump that he wants Obamacare to “implode” in order to make it easier to repeal it, as well as to his claim that the law is already “essentially dead.”

“President Trump said himself that he wanted the Affordable Care Act to explode, and his administration has been busy laying the dynamite and lighting the fuse,” said Anne Harkavy, executive director of the progressive legal advocacy group Democracy Forward, which filed the lawsuit on behalf of the cities.

Four cities — Baltimore, Chicago, Cincinnati, and Columbus, Ohio — are the plaintiffs in the lawsuit Thursday, along with two individuals from Charlottesville, Va., who claim they would be affected.

The lawsuit charges that Trump is violating the clause in the Constitution that the president must faithfully execute the nation’s laws.

The cities’ key evidence that the Trump administration is destabilizing the healthcare law is the fact that it has cut funding for outreach for the law and shortened the time period for open enrollment by six weeks.

To make their case, the groups also flag the administration’s regulations to expand access to association health plans and expand the duration of short-term plans. Both plans are cheaper than plans sold on Obamacare’s marketplaces because they do not have to meet the law’s requirements to cover essential health benefits or provide coverage for people with pre-existing conditions.

Experts have said that the plans could destabilize Obamacare’s marketplaces because younger and healthier people will leave the marketplace for cheaper plans. As a result, the marketplaces’ insurance risk pools will worsen because there aren’t enough young or healthy people to balance out the claim requests from sicker people.

The lawsuit uses Trump’s own statements to prove that the regulatory moves are part of an effort to undermine Obamacare.

“President Trump and his administration have been remarkably transparent about their intent and their approach,” the lawsuit said.

The suit references a litany of statements from Trump over how Obamacare was “essentially dead.” He also at one point tweeted that the best thing to do would be to let Obamacare “implode,” after Congress failed to repeal the law last year.

For instance, in one tweet in July 2017 Trump said he has “always said, let Obamacare fail and then come together and do a great healthcare plan.”

About a week later three Republican senators joined all of the Senate’s Democrats in opposing Obamacare repeal in the Senate. The failed vote doomed congressional efforts that year to repeal the law.

Last October, Trump tweeted that since Congress failed to “get its act together on healthcare, I will be using the power of the pen.”

A few days later he announced that he would end payments to Obamacare insurers called cost-sharing reductions. Critics have said the move would cause premiums to rise in the marketplaces.

Trump has also previously said the law is dead several times after the tax reform law zeroed out a financial penalty, starting in 2019, for Obamacare’s mandate that everyone get health insurance.

Legal expert Abbe Gluck told NBC News that Trump has been honest that he is working to sabotage the law. The Yale University law professor told NBC that “no scholar or court has ever said the president can use his discretion to implement a statute to purposely destroy it.”

But another expert said that the tweets and statements wouldn’t be enough for the cities to prove their case to a federal judge.

“I agree his tweeting is arbitrary and capricious, but that doesn’t mean his regulations are,” said Tom Miller, resident fellow at the right-leaning think tank American Enterprise Institute. “Tweeting isn’t the same thing as regulatory rulemaking.”

Miller said that the rule for changing the duration of short-term plans is legal.

“There are little tweaks in the margins, but in general that is not going to get overturned,” he said. “The association health plans at the end of the day are not going to get overturned.”

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