Relief was expressed by Democratic Party leaders following the congressional midterm election results in 2018. However, celebration at the election of 67 Democrats and only 44 Republicans in the House of Representatives was dampened by an increased Republican majority in the US Senate. Yet—despite increasing polarization between Democrats and Republicans in Congress—healthcare remains a core issue for both parties. Since political analysts of both parties anticipate increased congressional gridlock in 2019, the primary healthcare landscape “change agents” this year may be insurance companies, state and local governments, and court judges.
President Trump, Changed Courts, and Legal Impact on Healthcare Delivery
In his first two years as president, Donald Trump has already appointed (with Republican-controlled Senate confirmation) 53 federal district court judges, 30 federal appellate court judges, and two US Supreme Court justices. Six of these district and appellate court judges affirmed by a Republican Senate were deemed not qualified to serve by the American Bar Association (in accordance with usual American Bar Association clearance review).1
In reaction to increased Democratic clout in the House (that is expected to prevent legislative repeal of the Affordable Care Act [ACA]), a renewed Republican Party strategy is to stack the federal judiciary with right-leaning judges.2 Due to Republican Senator McConnell’s success in blocking President Obama from filling federal court vacancies, one-fourth of all federal district court and appellate court judgeships may be filled instead by Trump.3 Since the US Supreme Court hears—out of at least 7,000 annual case requests—around 80 cases per year,4 federal judges at these lower courts can easily become the final decision-makers.
While a a Republican Texas federal appeals court judge in December 2018 found the ACA to be unconstitutional, 12 state attorneys general (AGs) are appealing that decision to the US Supreme Court. The two Trump-appointed Supreme Court justices are decidedly anti-ACA (and three more of the nine justices were appointed by previous Republican presidents) so this does not bode well for a Supreme Court decision in this matter.
State and Local Challenges to Republican Healthcare Policy under Trump
On January 8, 2019, the mayor of New York City (NYC) announced the launch of the most comprehensive universal health coverage in the nation, guaranteeing primary and specialty medical care to uninsured residents (with both legal and undocumented residents eligible for that coverage).5 Established or expanded to promote this coverage were the following two programs:
NYC Care (targeting uninsured, low-income residents to enable their healthcare access regardless of citizenship status, including access to primary and specialty medical care, prescription drugs, and mental health care);
MetroPlus (public option in NYC to connect residents eligible for Medicare, Medicaid, or insurance via ACA exchanges, and targeted for increased funding in order to: broaden customer service capacity dually-aimed at providing help with the enrollment process, and assisting enrollees to access healthcare services).
Enacted in 2006, Massachusetts’ healthcare reform law established the Commonwealth Care Health Insurance Program (C-CHIP), which became the model for the ACA. Enrollment in C-CHIP has been available to both citizens and legal residents since this law’s initial passage.6 Meanwhile, California Democrats are reintroducing a bill under Democratic Governor Newsom allowing undocumented immigrants residing in California to receive government-sponsored health insurance.7
Both of Trump’s chosen DHHS heads have expressed their general opposition to government involvement in healthcare. The three above-described healthcare policy state and local implementations contrast starkly with Trump Administration goals to shrink “safety nets” for the disadvantaged. Meanwhile, Trump’s recently-proposed rule to deny citizenship to any legal immigrant applying for (or receiving) Medicaid or low-income food assistance is just plain cruel.
The New Democratic-Controlled House – Shift in House Healthcare Policies
While dysfunctional congressional partisanship is likely to impede the capacity for House Democrats to achieve anything beyond blocking further Trump-promoted attempts to repeal the ACA, the assumption of leadership of the Energy and Commerce Committee’s Health Subcommittee will transfer from Republican Michael Burgess of Texas (who co-sponsored an ACA repeal bill8) most probably to Democrat Anna Eshoo of California9 consequent to the House switch from Republican to Democratic control.
This leadership transfer is significant since this subcommittee drafts healthcare-related legislation. Likewise, chairing the Ways and Means’ health subcommittee will also transfer to a Democrat10 (and healthcare-related payment bills are developed in this subcommittee).
Insurance Company Trends and Mergers – Reaction to Trump Administration Policies
Noted by the American Medical Association (AMA) on November 28, 2018 was that competition levels have dropped for health insurance markets across 25 states.11 Moreover, AMA study findings in 2018 showed that—in 46 percent of metropolitan service areas (MSAs)—a single private insurer controlled at least 50 percent of the market share.12 Furthermore, an increasing trend among insurers is acquisition or formation of a Pharmacy Benefit Manager (PBM), in order to have greater control over the drugs offered in that insurer’s preferred list of prescription drugs.13
These consolidations may have begun under the Obama Administration, but vertical consolidations have accelerated under Trump in reaction to uncertainty over the ACA’s future and concomitant impact on insurers in tandem with skyrocketing drug costs. In November of 2018, CVS Health Corporation acquired Aetna,14 which is a large-scale vertical consolidation. Indeed, according to a recent study, 44 percent of healthcare executives reported mergers and acquisitions as their preferred growth plan.15
Meanwhile, both the CEO of the National Community Pharmacists Association and President of the AMA expressed concerns that vertical consolidations could result in higher prescription drug prices for insured people, along with decreased prescription drug options.16
Erosion of Three-Branch Checks and Balances under Trump
James Clapper (former Director of National Intelligence) warned in 2017 that Trump was eroding the “checks and balances” on the three branches—Executive, Legislative, and Judicial—of our federal government.17 (These checks and balances are embedded in the US Constitution.)
President Trump’s lack of awareness of the importance of checks and balances has been evidenced by his insistence on loyalty as a necessity for receiving a Department of Justice or judicial appointment, as well as utilization of Executive Orders to change longstanding global policies. Additionally, Trump has also displayed a disregard for fair elections through his Executive Order on January 3, 2018 terminating the Presidential Advisory Committee on Election Integrity.18
According to the Council on Foreign Relations, “Going forward, any attempts to stem the growth of presidential power will have to confront not just the damage done by Trump but also the deeper problem that damage has exposed: that the bodies charged with constraining presidential power have been steadily losing both their willingness and their capacity to rein in presidents.”19
President Trump’s promotion of tax breaks benefiting foremost the wealthiest individuals and corporations should serve as a metaphor of his perspective on equality in healthcare access. Clearly, this is not a president who understands that ending healthcare disparities benefits the public health of the nation as a whole.
Weakening of the Federal Government and US Public Health
For the third time in one year, the federal government was shut down under President Trump. The latest shutdown began on December 22, 2018, due to Trump’s refusal to sign a Senate federal funding bill that lacked inclusion of at least $5 B for a border wall.20 As noted by Marketplace, government shutdowns actually costs the federal government money.21
They are also demoralizing to government workers, and thereby weaken the capacity of government to function. Therefore, federal shutdowns are not considered a good method to resolve public policy differences. Yet, President Trump stated in a televised Oval Office meeting on December 11, 2018 that he would be “proud” to shut down the federal government.22
Nations without functioning governments are considered failed states, and this is not a situation to to which our country should aspire. However, the Federalist Society (which recommended Neil Gorsuch and Brett Kavanaugh to Trump for nomination to the Supreme Court) supports a weakened US role for federal government.
Likewise, President Trump favors weakened federal government as evidenced by his roll-back of most Environmental Protection Agency (EPA) regulations. Gutting the EPA can only leave residents of the US at increased risk for health disorders related to toxic environmental hazards.
Cleaning Up the Mess Produced by the Trump Administration
We have a Trump-created future mess that will probably take a generation or more to clean up. From roll-backs on vehicle emissions and drinking-water safety to USDA roll-backs of nutritional standards for public school lunches (i.e., more sugar allowed in milk products)23—and from decreased women’s access to contraceptives to increased fear by noncriminal undocumented immigrants of obtaining needed healthcare due to fear of sudden deportation—the legacy of the Trump Era will negatively impact the health of the nation.
However, the likelihood that President Trump will be able to nominate another Supreme Court justice during his term is the most potentially damaging legacy. While House Democrats can attempt to block Republican congressional attacks on healthcare access, a further rightward tilt of the Supreme Court can create healthcare access barriers for millions of Americans. In that case, the public health of the nation will be the cost.
Let’s just hope the next two years pass quickly so someone other than Donald Trump or Mike Pence (or one of their acolytes) can be sworn in as the 46th President!