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Nobody Knew How Complicated: Constraining The President's Power To (Re)Shape Health Reform

Published online by Cambridge University Press:  06 January 2021

Sallie Thieme Sanford
Sallie Thieme Sanford*
Affiliation:
University of Washington School of Law, University of Washington School of Public Health
*
[email protected].
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Abstract

Beginning on inauguration day, President Trump has attempted an executive repeal of the Affordable Care Act. In doing so, he has tested the limits of presidential power. He has challenged the force of institutional and non-institutional constraints. And, ironically, he has helped boost public support for the ACA's central features. The first two sections of this article respectively consider the use of the President's tools to advance and to subvert health reform. The final two sections consider the forces constraining the administration's attempted executive repeal. I argue that the most important institutional constraint, thus far, is found in multifaceted actions by states – and not only blue states. I also highlight the force of public voices. Personal stories, public opinion, and 2018 election results – bolstered by presidential messaging – reflect growing support for government-grounded options and statutory coverage protections. Indeed, in a polarized time, “refine and revise” seems poised to supplant “repeal and replace” as the conservative focus countering liberal pressure for a common option grounded in Medicare.

Type
Articles
Information
American Journal of Law & Medicine , Volume 45 , Issue 2-3: Symposium - The Crisis of Democracy in Healthcare: Non-Legislative Efforts to Change Health Law , May 2019 , pp. 106 - 129
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2019

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References

1 President Barack Obama, Remarks to a Joint Session of Congress on Health Care (Sept. 9 2009), https://obamawhitehouse.archives.gov/video/President-Obama-Address-to-Congress-on-Health-Insurance-Reform#transcript [https://perma.cc/ERS4-APZA].

2 See, e.g., A Bipartisan Blueprint for Improving Our Nation's Health System Performance, Colorado Official State Web Portal (Feb. 23, 2018), https://www.colorado.gov/governor/sites/default/files/bipartisan_governors_blueprint_022218final.pdf [https://perma.cc/RJ3E-WZ7P] (five state governors, two Democrat, two Republican, and one Independent, issued bipartisan “blueprint” outlining suggestions to preserve insurance coverage and improve the nation's healthcare system performance).

3 Katie Keith, Two New Lawsuits Challenge Trump Administration Actions on Health Reform, Health Aff. Blog (Sept. 17. 2018), https://www.healthaffairs.org/do/10.1377/hblog20180917.479910/full/ [https://perma.cc/8NX9-QRG8] (Democratic attorneys general and governors intervened in Texas v. United States to argue in defense of the constitutionality of the ACA).

4 Ashely Kirzinger et al., Kaiser Health Tracking Poll – Late Summer 2018: The Election, Pre-Existing Conditions, and Surprises on Medical Bills, Kaiser Family Found. (Sept. 5, 2018) https://www.kff.org/health-costs/poll-finding/kaiser-health-tracking-poll-late-summer-2018-the-election-pre-existing-conditions-and-surprises-on-medical-bills/ [https://perma.cc/N2BR-F67P] (finding that 50% of Americans view the ACA favorably and 40% view it unfavorably).

5 Kevin Liptak, Trump: “Nobody Knew Health Care Could Be So Complicated”, CNN, (Feb. 28, 2017) https://www.cnn.com/2017/02/27/politics/trump-health-care-complicated/index.html [https://perma.cc/7XBV-VU7D].

6 David Blumenthal & James A Morone, The Heart of Power: Health and Politics in the Oval Office 4 (U. of Cal. Press, 2d ed. 2010) (“Presidents control one of the world's great megaphones”).

7 Id. at 7 (The authors acknowledge and draw on the work of “the dean of presidential studies,” Richard Neustadt).

8 Id. at 11 (Republican Theodore Roosevelt is often credited as the first president to press for universal, government-grounded health care coverage, though he did so four years after vacating “the bully pulpit” and while campaigning unsuccessfully in 1912 to recapture the office. It is with his cousin, Democrat Franklin D. Roosevelt, that the president's role here takes shape). See also Obama Remarks on Healthcare, supra note 1 (“It has now been nearly a century since Theodore Roosevelt first called for health care reform.”).

9 Blumenthal & Morone, supra note 6, at 11.

10 Id. at 38.

11 Id. at 11.

12 See generally Blumenthal & Morone, supra note 6, at 21-56 (describing President Roosevelt's difficulties with health reform).

13 Id. at 163.

14 Id.

15 Sallie Thieme Sanford, Health Care's Fraternal Twins at 50: The Birth and Development of Medicare and Medicaid, Jurist: Blog (Nov. 1, 2015, 7:03 AM), https://www.jurist.org/commentary/2015/11/salliethieme-sanford-healthcare/; see also Gluck, Abbe R., The Law of Medicare and Medicaid at Fifty, 15 Yale J. Health Pol'y, L. & Ethics. 1, 2 (2015)Google Scholar (describing the similarities and differences between Medicare and Medicaid).

16 Blumenthal & Morone, supra note 6, at 85, 355.

17 Id. at 70.

18 Id. at 85, 356.

19 Id. at 356.

20 Id. at 380.

21 See Id. at 304, 387-98, 416-17 (discussing Reagan's and George W. Bush's Medicare reforms).

22 Id. at 330.

23 Id. at 393.

24 See President Barack Obama, Remarks by the President in Town Hall Meeting on Health Care in Green Bay, Wisconsin (June 11, 2009), https://obamawhitehouse.archives.gov/the-press-office/remarks-president-town-hall-meeting-health-care-green-bay-wisconsin [https://perma.cc/E92P-7T6J] (“None of these plans, though, would be able to deny coverage on the basis of pre-existing conditions. Every plan should include an affordable, basic benefits package”).

25 President Barack Obama, Statement by the President on the Anniversary of the Affordable Care Act, (Mar. 23, 2013), https://obamawhitehouse.archives.gov/the-press-office/2013/03/23/statement-president-anniversary-affordable-care-act [https://perma.cc/3UTP-UVTC]; see also, President Barack Obama, Opinion, Why We Need Healthcare Reform, N.Y. Times, (Aug. 15, 2009), https://www.nytimes.com/2009/08/16/opinion/16obama.html [https://perma.cc/T367-JB6N]. (describing the four main points of his plan: affordable for all, easing skyrocketing health costs, efficiency and accountability of insurance companies).

26 See Morone, James, Presidents and Health Reform: From Franklin D. Roosevelt to Barack Obama, 29 Health Aff. 1097, 1098 (June 2010)Google Scholar (“A fatal mistake of the Clinton administration was its long delay in getting a health reform bill to Congress.”).

27 See id. at 1097 (“Many observers have criticized the Obama administration for ‘over-learning’ the lessons of the Clinton administration and not sending a more fully fleshed plan to Congress.”).

28 See id. at 1098.

29 Id.; see also Julie Rovner, ‘You Can't Have Perfection’: Lawmakers Who Forged ACA Look Back, Kaiser Health News (June 27, 2018), https://khn.org/news/you-cant-have-perfection-lawmakers-who-forged-aca-look-back/ [https://perma.cc/46S5-CBYS] (discussion with the five Congressional committee leaders: Max Baucus (D-Mont.), Chris Dodd (D-Conn.), Henry Waxman (D-Calif.), George Miller (DCalif.) and Sander Levin (D-Mich.) who stewarded the ACA toward its passage in 2010).

30 See Morone, supra note 26, at 1098 (regarding the impact of public voices).

31 Id. at 1096.

32 President Barack Obama, State of the Union Address (Jan. 27, 2010), https://obamawhitehouse.archives.gov/photos-and-video/video/2010-state-union-address#transcript [https://perma.cc/Q876-2QRB].

33 See Jacobs, Lawrence R., What Health Reform Teaches Us about American Politics, 43 Pol. Sci. & Pol. 619, 622 (Oct. 1, 2010)Google Scholar (discussing Obama's role in promoting health reform and refortifying the cause in early 2010); see also Lawrence R. Jacobs & Theda Skocpol, Health Care Reform and American Politics: What Everyone Needs to Know 101-121 (Oxford U. Press, 2d ed. 2012) (discussing impacts of Kennedy's death and the election of Scott Brown).

34 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) [hereinafter Affordable Care Act] (codified as amended in scattered sections of the U.S. Code).

35 Affordable Care Act § 1501, 26 U.S.C. § 5000A (2012), amended by Act to Provide for Reconciliation Pursuant to Titles II and V of the Concurrent Resolution on the Budget for Fiscal Year 2018, Pub. L. No. 115-97 § 11081, 131 Stat. 2054, 2092 (2017) (originally introduced as the Tax Cuts and Jobs Act of 2017); see also Texas v. United States, 352 F. Supp. 3d 665 (N.D. Tex. 2018), filing appeal (5th Cir. filed Jan. 7, 2019) (holding that without the tax penalty the individual mandate lacks constitutional grounding and that thus the entire law must fall, and entering a stay).

36 26 U.S.C. § 4980H (2012).

37 Affordable Care Act § 2001(a)(4), 124 Stat. 119, 274 (codified as amended at 42 U.S.C. § 1396a(10)(A)(i)(VIII) (2012)) (amending § 1902 of the Social Security Act); Nat'l Fed'n of Indep. Bus. (NFIB) v. Sibelius, 567 U.S. 519, 575-88 (2012) (plurality opinion) (holding unconstitutional the requirement of Medicaid expansion).

38 See generally Affordable Care Act §§ 1001-1563; Affordable Care Act § 1101, 42 U.S.C. § 18001 (2012) (establishing a temporary high-risk health insurance pool program); Affordable Care Act § 1201, 42 U.S.C. §300gg-3 (2012) (prohibiting preexisting condition exclusions); see also Ctr. for Consumer Info. & Ins. Oversight, Health Insurance Market Reforms, Ctrs. for Medicare & Medicaid Servs., https://www.cms.gov/CCIIO/Programs-and-Initiatives/Health-Insurance-Market-Reforms/index.html [https://perma.cc/B8RN-YFW4] (last visited Dec. 3, 2018) (summarizing 13 market reforms).

39 Alter, Jonathan, Teddy on Teddy, Newsweek, Aug. 27, 2009, at 74. See also The Boston Globe, Last Lion: The Fall and Rise of Ted Kennedy 323 (Canellos, Peter S. ed., 2009)Google Scholar.

40 See Shanoor Seervai & David Blumenthal, M.D., Lessons on Universal Coverage from an Unexpected Advocate: Richard Nixon, Commonwealth Fund: Blog (Nov. 2, 2017), https://www.commonwealthfund.org/blog/2017/lessons-universal-coverage-unexpected-advocate-richard-nixon [https://perma.cc/2X2K-G99C] (noting that the “two main pillars of Nixon's plan were an employer mandate and expanded coverage for the poor”).

41 Id.

42 Blumenthal & Morone, supra note 6, at 230–247 (“Nixon changed the health care discussion in the United States. Today's reformers all stand in his shadow. Ultimately, however, Nixon could not change himself. His health care plans went down with him amid the wreckage of Watergate.”).

43 Ryan Koronowski, 68 Times Trump Promised to Repeal Obamacare: The White House Says It's Already Moving On, ThinkProgress (Mar. 24, 2017, 8:28 PM), https://thinkprogress.org/trump-promised-to-repeal-obamacare-many-times-ab9500dad31e/ [https://perma.cc/R79F-NGSY].

44 Id.

45 Bob Bryan, Trump Is Making a Massive Promise about His Obamacare Replacement, Bus. Insider, (Jan. 26, 2017, 1:08 PM), https://www.businessinsider.com/trump-obamacare-promise-2017-1 [https://perma.cc/3ESD-M5L7].

46 President Donald J. Trump, Remarks by President Trump at the 2017 Values Voter Summit (Oct. 13, 2017) (transcript available at https://www.whitehouse.gov/briefings-statements/remarks-president-trump-2017-values-voter-summit/ [https://perma.cc/552A-ZU27]).

47 Tamara Keith, Wielding a Pen and a Phone, Obama Goes It Alone, NPR (Jan. 24, 2014, 3:36 AM), https://www.npr.org/2014/01/20/263766043/wielding-a-pen-and-a-phone-obama-goes-it-alone [https://perma.cc/PD7E-WUKZ]; Obama on Executive Actions: ‘I've Got a Pen And I've Got A Phone’, CBS Wash. (Jan. 14, 2014, 1:05 PM), https://washington.cbslocal.com/2014/01/14/obama-on-executive-actions-ive-got-a-pen-and-ive-got-a-phone/ [http://cbsloc.al/JYNE7G].

48 See Tessa Berenson, Reminder: The House Voted to Repeal Obamacare More than 50 Times, TIME (Mar. 24, 2017), http://time.com/4712725/ahca-house-repeal-votes-obamacare/ [https://perma.cc/963D-DN3L] (noting that the House has voted over 50 times on repealing or amending the ACA); Sean Sullivan, Republicans abandon the fight to repeal and replace Obama's health care law, Wash. Post (Nov. 7, 2018), https://www.washingtonpost.com/powerpost/republicans-abandon-the-fight-to-repeal-and-replace-obamas-health-care-law/2018/11/07/157d052c-e2d8-11e8-ab2cb31dcd53ca6b_story.html?noredirect=on&utm_term=.71296deadb7f [https://perma.cc/V47Q-XW8K] (discussing congressional Republicans' efforts to repeal the ACA).

49 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 10, 2017, 2:30 AM), https://twitter.com/realdonaldtrump/status/917698839846576130?lang=en [https://perma.cc/JDB9-3UZ7].

50 Lisa Manheim & Kathryn Watt, The Limits of Presidential Power: A Citizen's Guide to the Law 58 (Manheim & Watts, LLC 2018) (“The President's Toolkit”).

51 For this extended metaphor, I gratefully acknowledge Jane Beyer, Senior Health Policy Advisor, Washington State Office of the Insurance Commissioner. See also infra Section IV (regarding state fingers plugging the dike holes created by Trump administration actions).

52 Blumenthal & Morone, supra note 6, at 11.

53 Sanford, Sallie Thieme, The Struggle to Bury Pre-Existing Condition Consideration, 7 St. Louis J. Health L. & Pol'y 405, 410–412 (2014)Google Scholar.

54 Id.

55 26 U.S.C. § 36B (2010); 42 U.S.C. § 18071.

56 26 U.S.C. § 36B (2010).

57 Office of the Assistant Sec'y for Planning and Evaluation, U.S. Federal Poverty Guidelines Use to Determine Financial Eligibility for Certain Federal Programs, U.S. Dep't. Health & Hum. Servs., https://aspe.hhs.gov/poverty-guidelines [https://perma.cc/ZR9V-8TZJ] (last visited Mar. 26, 2019).

58 Id.

59 Health Insurance Exchanges 2018 Open Enrollment Period Final Report, Ctrs. for Medicare & Medicaid Servs. (Apr. 3, 2018), https://www.cms.gov/newsroom/fact-sheets/health-insurance-exchanges-2018-open-enrollment-period-final-report [https://perma.cc/U5EM-6XP9] [hereinafter CMS.gov Final Report]; see also Rachel Fehr et al., How ACA Marketplace Premiums Are Changing by County in 2019, Kaiser Family Found. (Nov. 20, 2018), https://www.kff.org/health-costs/issue-brief/how-aca-marketplace-premiums-are-changing-by-county-in-2019/?utm_campaign=KFF-2018-The-Latest&utm_source=hs_email&utm_medium=email&utm_content=67700339&_hsenc=p2ANqtz-9Thx8hFjXer6rV84z5_G2oEsgFmkPqjRwgW7psV7tLBYvOaGVWoeD7dNeGo3zkzdJPRMpQgv6brG42oAYOA6Cjlgbpnw&_hsmi=67700339 [https://perma.cc/2WGS-JNWC]; see infra Section IV.A, for a discussion of the complex reasons why the average monthly premium paid by a subsidized individual was lower (by about $25) in 2017 and 2018 compared to the first years of the marketplaces.

60 Stephen Miller, HHS Sets 2018 Health Plan Out-of-Pocket Maximums, HRNews (Dec. 22, 2016), https://ezproxy.bu.edu/login?url=https://search.proquest.com/docview/1851717484?accountid=9676 [https://perma.cc/7VTP-Q797].

61 Those with incomes below 100% FPL or above 400% FPL are not entitled to any premium subsidies (or cost-sharing reductions). The ACA as written intends that those at the lower income level be covered under a large employer plan or Medicaid, which the Supreme Court's 2012 decision made a state option. As of mid-2018, 33 states and the District of Columbia had expanded their Medicaid programs; those that had not include populous Texas and Florida. See Status of State Medicaid Expansion Decisions: Interactive Map, Kaiser Family Found. (Nov. 26, 2018), https://www.kff.org/health-reform/slide/current-status-of-the-medicaid-expansion-decision/ [https://perma.cc/S9G9-3ER8]; see infra Section IV.B for discussion of Medicaid expansion and the 2018 mid-term election.

62 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 9, 2016, 2:15 PM), https://twitter.com/realDonaldTrump/status/697182075045179392?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E697182075045179392&ref_url=https%3A%2F%2Fwww.washingtonpost.com%2Fnews%2Fpolitics%2Fwp%2F2017%2F03%2F24%2Fits-true-trump-didnt-pledge-obamacare-repeal-in-64-days-he-pledged-it-in-one%2F [https://perma.cc/C8TR-PFMK]; see also Philip Bump, It's True Trump Didn't Pledge Obamacare Repeal in 64 Days. He Pledged It in One, Wash. Post (Mar. 24, 2017), https://www.washingtonpost.com/news/politics/wp/2017/03/24/its-true-trump-didnt-pledge-obamacare-repeal-in-64-days-he-pledged-it-in-one/?utm_term=.128a7927b2c5 [https://perma.cc/H8AU-5FPC] (noting President Trump's repeated pledge to repeal ACA immediately).

63 Exec. Order No. 13765, 3 Fed. Reg. 8351 (January 20, 2017).

64 Id.

65 Amy Goldstein & Philip Rucker, Trump names Rep. Tom Price as next HHS secretary, Wash. Post (Nov. 29, 2016), https://www.washingtonpost.com/news/powerpost/wp/2016/11/28/trump-to-name-rep-tom-price-as-next-hhs-secretary/ [https://perma.cc/HB7Q-Z786].

66 Audrey Carlsen & Haeyoun Park, The Same Agency That Runs Obamacare Is Using Taxpayer Money to Undermine It, N.Y. Times, (Sept. 4, 2017), https://www.nytimes.com/interactive/2017/09/04/us/hhs-anti-obamacare-campaign.html [https://perma.cc/9G2G-EEFW]; see also Timothy Jost, CMS Cuts ACA Advertising By 90 Percent Amid Other Cuts to Enrollment Outreach, Health Aff. Blog (Aug. 31, 2017), https://www.healthaffairs.org/do/10.1377/hblog20170901.061790/full/ [https://perma.cc/F9N5-WL9Z] (noting that CMS will focus outreach and marketing on digital messages).

67 President's Fiscal Year 2018 Health Care Proposals: Hearing Before the Comm. on Fin., 115th Cong. (2017), available at https://www.finance.senate.gov/imo/media/doc/30210.pdf [https://perma.cc/2S8Y-6W8D].

68 Id. at 59.

69 U.S. House of Representatives v. Burwell, 185 F. Supp. 3d 165, 174-176 (D.D.C. 2016).

70 Id.

71 Katie Keith, States' Lawsuit Over Cost-Sharing Reductions is Dismissed, Health Aff. Blog (July 19, 2018), https://www.healthaffairs.org/do/10.1377/hblog20180719.822849/full/ [https://perma.cc/5CQR-SLTD]. One of the best resources for tracking the myriad federal implementation activities is this Health Affairs “following the ACA” blog, with its regular postings from Tim Jost, Katie Keith and others.

72 Erin Raftery & Amy Lotven, Court Grants House Wish to put CSR Case on Hold Until February, InsideHealthPolicy.com's Daily Brief (Dec. 6, 2016).

73 Michael C. Bender, Louise Radnofsky & Peter Nicholas, Trump Threatens to Withhold Payments to Insurers to Press Democrats on Health Bill, Wall St. J. (Apr. 12, 2017, 5:06 PM), https://www.wsj.com/articles/trump-threatens-to-withhold-payments-to-insurers-to-press-democrats-on-health-bill-1492029844 [https://perma.cc/EU5P-RRRZ].

74 See Section IV.B., infra, for a discussion of state attempts, using section 1332 waivers to reestablish reinsurance programs.

75 Keith, CSR, supra note 71.

76 Promoting Healthcare Choice and Competition Across the United States, Exec. Order No. 13,813, 82 Fed. Reg. 48385 (Oct. 12, 2017) [https://perma.cc/9PMX-26JL]. Other proposed changes to similar effect include revisions to the regulations concerning Health Reimbursement Arrangements.

77 Katie Keith, The Short-Term, Limited-Duration Coverage Final Rule: The Background, The Content, And What Could Come Next, Health Aff. Blog (Aug. 1, 2018), https://www.healthaffairs.org/do/10.1377/hblog20180801.169759/full/ [https://perma.cc/AJN2-N55S] hereinafter Keith Short-Term, Limited-Duration Coverage] (explaining STLD rule); see also Katie Keith, Final Rule Rapidly Eases Restrictions On Non-ACA-Compliant Association Health Plans, Health Aff. Blog (June 21, 2018), https://www.healthaffairs.org/do/10.1377/hblog20180621.671483/full/ [https://perma.cc/P2H3-ZS48] (explaining AHP Rule).

78 Keith, Short-Term, Limited-Duration Coverage, supra note 77 (explaining STLD rule).

79 Id.

80 Id.

81 Id.

82 Id. See also Zachary Tracer & Emma Ockerman, It's Buyer Beware for Short-Term Health Plans Pushed by Trump, Bloomberg Law (Aug. 1, 2018, 9:20 AM) https://news.bloomberglaw.com/health-law-and-business/its-buyer-beware-for-short-term-health-plans-pushed-by-trump [https://perma.cc/NU3C-4JFM].

83 Keith, Short-Term, Limited-Duration Coverage, supra note 77 (explaining STLD rule). Keith, Final Rule Rapidly Eases Restrictions, supra note 77 (explaining AHP Rule).

84 Katie Keith, Feds Dramatically Relax Section 1332 Waiver Guardrails, Health Aff. Blog (Oct. 23, 2018), https://www.healthaffairs.org/do/10.1377/hblog20181023.512033/full/ [https://perma.cc/UCE3-4ZWW].

85 Id.

86 Id.

87 King v. Burwell, 135 S.Ct. 2480, 2482-2484 (2015). See also Sanford, Sallie Thieme, Mind the Gap: Basic Health Along the ACA's Coverage Continuum, 17 Md. J. Health Care L. & Pol'y 101, 103–105 (2014)Google Scholar (describing near-collapse of the individual market in Washington State in the late 1990's after repeal of contentious mandates and retention of consumer protections).

88 The ACA allows older people to be charged up to three times as much as younger people for the same policy. Those who receive a subsidy are largely shielded from this differential, because their subsidy rises to account for the age-adjusted premium for the benchmark plan. Rural people often face higher premium costs than city dwellers because there are typically fewer insurers competing for a smaller number of people, who are more expensively sick than average. These rural challenges were one argument in favor of a “public option” on the marketplaces. Vann Newkirk & Anthony Damico, The Affordable Care Act and Insurance Coverage in Rural Areas, Kaiser Family Found. (May 29, 2014), https://www.kff.org/uninsured/issue-brief/the-affordable-care-act-and-insurance-coverage-in-rural-areas/ [https://perma.cc/PD96-VR4D].

89 Katie Keith, Texas Litigation: Where Are We Now and What Could Happen Next?, Health Aff. Blog (Sept. 4, 2018), https://www.healthaffairs.org/do/10.1377/hblog20180904.981573/full/ [https://perma.cc/72ZG-PY57] [hereinafter Keith, Texas Litigation].

90 Texas v. United States, supra note 35.

91 Id.

92 Id.

93 CMS.gov Final Report, supra note 59.

94 Rachel Fehr, Cynthia Cox, & Larry Levitt, Insurer Participation on ACA Marketplaces, 2014-2019, Kaiser Family Found. (Nov. 14, 2018), https://www.kff.org/health-reform/issue-brief/insurer-participation-on-aca-marketplaces-2014-2019/ [https://perma.cc/XJZ3-XR57].

95 See CMS.gov, Final Report, supra note 59. See also Fehr et al., Changing by County, supra note 59.

96 President Donald Trump, Remarks at the 2017 Values Voter Summit, supra note 46.

97 Gluck, Abbe R. & Huberfeld, Nicole, The New Health Care Federalism on the Ground, 15 Ind. Health L. Rev. 1, 1 (2018)Google Scholar. See also Gluck, Abbe R. & Huberfeld, Nicole, What is Federalism in Health Care For?, 70 Stan. L. Rev. 1689, 1734 (2018)Google Scholar.

98 Gluck & Huberfeld, New Health Care Federalism, supra note 97, at 16–20.

99 Keith, CSR, supra note 71.

100 Id.

101 Id.

102 A purchaser's subsidy amount is designed to bring the age-adjusted full premium cost of the second cheapest silver plan down to a statutorily set percentage of the purchaser's income. For details on the complicated pricing in 2017 and 2018. See Fehr et al., Changing by County, supra note 59. There have been rumblings that the 2020 Notice of Benefit and Payment Parameter rule, expected to be published in early 2019, might attempt to prohibit silver loading.

103 Fehr et al., Changing by County, supra note 59.

104 Keith, Texas Litigation, supra note 89.

105 Katie Keith, Two New Lawsuits Challenge Trump Administration Actions on Health Reform, Health Aff. Blog (Sept. 17, 2018), https://www.healthaffairs.org/do/10.1377/hblog20180917.479910/full/ [https://perma.cc/KY5V-6GJ4].

106 Complaint for Declaratory and Injunctive Relief at 3, City of Columbus v. Trump, No. 18-cv-2364 (D. Md. Aug. 2, 2018), [https://perma.cc/W6VN-PEMH]; U.S. Const. art. II, § 3, cl. 5.

107 Katie Keith, ACA Round-Up: States Sue over AHP Rule; Wisconsin's 1332 Waiver Approved; House Votes to Repeal And Delay ACA Taxes, Authorize Copper Plans, Health Aff. Blog (July 30, 2018), https://www.healthaffairs.org/do/10.1377/hblog20180730.639187/full. [https://perma.cc/6MXU-KSRP].

108 Katie Keith, Mandate Round-Up: Texas v. U.S., House Moves to Prevent D.C. Mandate, and New Report on Impact of State Mandates, Health Aff. Blog (July 23, 2018), https://www.healthaffairs.org/do/10.1377/hblog20180723.634173/full [https://perma.cc/G8Z8-VUZ7].

109 Kevin Lucia et al., State Regulation of Coverage Options Outside of the Affordable Care Act: Limiting the Risk to the Individual Market, The Commonwealth Fund (Mar. 29, 2018), https://www.commonwealthfund.org/publications/fund-reports/2018/mar/state-regulation-coverage-options-outside-affordable-care-act?redirect_source=/publications/fund-reports/2018/mar/state-regulation-coverage-options-outside-aca [https://perma.cc/Q5AE-QFE8].

110 Id.

111 Mary Ellen McIntire, States Weigh Response to Proposed Short-Term Health Plan Rule, Roll Call (Mar. 5, 2018, 5:00 AM), https://www.rollcall.com/news/policy/states-weigh-response-proposed-short-term-health-plan-rule. [https://perma.cc/N4T3-QV3U]; see also Lucia et al., supra note 109.

112 Heather Howard & Galen Benshoof, Section 1332 Waivers and the Future of State Health Reform, Health Aff. Blog (Dec. 5, 2014), https://www.healthaffairs.org/do/10.1377/hblog20141205.043142/full [https://perma.cc/9LQ6-MC8F].

113 Ario, Joel and Nysenbaum, Jessica, State Reinsurance Programs: Design, Funding, and 1332 Waiver Considerations for States, Manatt Health 1, 4 (2018)Google Scholar, https://www.shvs.org/wp-content/uploads/2018/03/Reinsurance-Brief-Update-FINAL.pdf [https://perma.cc/V6T6-JDYL].

114 See Heather Howard & Galen Benshoof, Section 1332 Waivers and the Future of State Health Reform, Health Aff. Blog (Dec. 5, 2014), https://www.healthaffairs.org/do/10.1377/hblog20141205.043142/full [https://perma.cc/9LQ6-MC8F]. Senator Ron Wyden (D-OR) sponsored the amendment that allows states, with the approval of the federal government, to waive certain features of the ACA as long as their innovative approach would meet or exceed the quality, affordability, and reach of the ACA framework.

115 Timothy Jost, ACA Round-Up: CMS Approves Alaska 1332 Reinsurance Waiver, Ceases Premium Outlier Reviews, Health Aff. Blog (July 12, 2017), https://www.healthaffairs.org/do/10.1377/hblog20170712.061031/full. [https://perma.cc/9XJQ-DJMN].

116 Id.

117 Billy Wynne & Timothy Jost, The Alexander-Murray Market Stabilization Package: What's In It and Where's It Going?, Health Aff. Blog (Oct. 17, 2017), https://www.healthaffairs.org/do/10.1377/hblog20171022.680941/full [https://perma.cc/DXF8-9UTX].

118 Teacher's Town Hall Question Goes Viral, CNN, (Feb. 9, 2017), https://www.cnn.com/videos/politics/2017/02/10/republican-town-hall-diane-black-obamacare-question-sot.cnn/video/playlists/obamacare/ [https://perma.cc/MSQ7-E4DY].

119 Id.

120 Victoria Kim, The Pitched Election Battle Over Healthcare Is Personal for Many Southland Voters, L.A. Times, (Nov. 4, 2018, 2:00 AM), http://www.latimes.com/local/lanow/la-pol-ca-midterms-healthcare-20181104-story.html [https://perma.cc/ZEP8-8QK4].

121 Chris Cillizza, How the ‘Jimmy Kimmel Test’ Became the Health Care Fight's Measuring Stick, CNN, (Sept. 20, 2017, 11:32 AM), https://www.cnn.com/2017/09/20/politics/health-care-kimmel/index.html [https://perma.cc/3Z8V-933N].

122 Giovanni Russonello, Jimmy Kimmel's Emotional Monologue: His New Son's Heart Condition, N.Y. Times, (May 2, 2017), https://www.nytimes.com/2017/05/02/arts/television/jimmy-kimmel-baby-son-wife.html [https://perma.cc/Z3BW-XP4Q].

123 Jim Brunner, Kim Schrier, a Doctor, Makes Health Care a Centerpiece of Her 8th District Campaign for Congress, Seattle Times, (July 26, 2018, 8:49 AM), https://www.seattletimes.com/seattle-news/politics/kim-schrier-a-doctor-makes-health-care-a-centerpiece-of-her-8th-district-campaign-for-congress [https://perma.cc/E4L6-PLZ2].

124 Paul Harris and Ewen MacAskill, US Midterm Election Results Herald New Political Era as Republicans Take House, T he G uardian, (Nov. 3, 2010), https://www.theguardian.com/world/2010/nov/03/us-midterm-election-results-tea-party [https://perma.cc/8WBJ-S7U8].

125 See Kaiser Health Tracking Poll: The Public's Views on the ACA, Kaiser Family Found. (Mar. 1, 2019), https://www.kff.org/interactive/kaiser-health-tracking-poll-the-publics-views-on-the-aca [https://perma.cc/6WZS-3ASQ] (Kaiser's periodic polling shows that there have been a few times in which the public's overall opinion of the ACA has been favorable, but the most significant and steady favorability trend began in February 2017).

126 Id.

127 Id.

128 Id.

129 Ashley Kirzinger et. al, Kaiser Health Tracking Poll—Late Summer 2018: The Election, Pre-Existing Conditions, and Surprises on Medical Bills, Kaiser Family Found. (Sept. 5, 2018), https://www.kff.org/health-costs/poll-finding/kaiser-health-tracking-poll-late-summer-2018-the-election-pre-existing-conditions-and-surprises-on-medical-bills [https://perma.cc/FT5J-D8WX].

130 Id.

131 Jeff Jones and Lydia Saad, Gallup Poll Social Series: Health and Healthcare—Final Topline, Gallup, (Nov. 2-8, 2017), https://news.gallup.com/poll/223391/majority-government-ensure-healthcare-coverage.aspx [https://perma.cc/9PB2-7AYW].

132 Jocelyn Kiley, Most Continue to Say Ensuring Health Care Coverage Is Government's Responsibility, Pew Res. Center: Fact Tank, (Oct. 3, 2018), http://www.pewresearch.org/fact-tank/2018/10/03/most-continue-to-say-ensuring-health-care-coverage-is-governments-responsibility/ [https://perma.cc/DFZ9-PFND].

133 See Atul Gawande, Is Health Care a Right?, New Yorker, Oct. 2, 2017, https://www.newyorker.com/magazine/2017/10/02/is-health-care-a-right [https://perma.cc/H2LR-6ELY].

134 Lawrence R. Jacobs & Robert Y. Shapiro, Politicians Don't Pander: Political Manipulation and the Loss of Democratic Responsiveness xvi (Univ. of Chi., 1st ed. 2000).

135 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 18, 2018, 11:43 AM), https://twitter.com/realdonaldtrump/status/1053008701026693122?lang=en [https://perma.cc/LX5NRVUK].

136 Texas v. United States, supra note 35.

137 Will Schmitt, Hawley's Balancing Act: Would Add Pre-existing Condition Protections after Suing to Remove, Springfield News-Leader, (Sept. 26, 2018, 3:00 PM), https://www.news-leader.com/story/news/politics/elections/2018/09/26/mccaskill-hawley-obamacare-pre-existing-conditions-coverage-lawsuit/1431086002/ [https://perma.cc/CAH9-H4EM]; see also Margot Sanger-Katz, Republicans Say They Will Protect Pre-existing Conditions; Their Records Say Something Else, N.Y. Times, (Nov. 2, 2018), https://www.nytimes.com/2018/11/02/upshot/republicans-pre-existing-conditions-.html [https://perma.cc/V4QX-YKJP].

138 Abby Goodnough, Idaho, Nebraska and Utah Vote to Expand Medicaid, N.Y. Times, (Nov. 7, 2018), https://www.nytimes.com/2018/11/07/health/medicaid-expansion-ballot.html [https://perma.cc/6Q68-DRV9].

139 Id.

140 Id.

141 Id.

142 Id.

143 Jacobs, Lawrence R., Health Reform and the Future of American Politics, 12 Perspectives on Politics 631, 637 (2014)Google Scholar.