The Trump administration shocked much of Washington on Monday when it reversed legal course and urged a federal appeals court to strike down the entire Affordable Care Act, including its popular Medicaid expansion. The move has flustered congressional Republicans, who have been forced to quiet their gloating about the Mueller report and talk about health care, which they generally regard these days as political kryptonite.
And now we know whom they can blame: Mick Mulvaney. Both Politico and the New York Times report that the White House chief of staff, along with one of his proteges, was the main driver behind the president’s decision, which was opposed by the attorney general, vice president, and secretary of health and human services.
Mulvaney’s power move probably does not mean much for the future of Obamacare. But it does confirm that the man has acquired a great deal of influence in the White House—which, given his venal policy instincts and tin ear for politics, can’t possibly bode well for anybody, least of all Republican lawmakers.
Late last year, a federal court judge in Texas handed down a farcically reasoned opinion invalidating all of Obamacare, because Republicans had zeroed out the tax penalty associated with the law’s individual mandate. He argued that the Supreme Court had previously upheld the mandate as a tax, and now that the tax was gone, the requirement that Americans must buy health insurance was now unconstitutional, and—this is the absurd bit—the rest of the law must also fall as well.
In doing so, he sided with a group of Republican state attorneys general who had sued to void the entire ACA. In a controversial move, the Trump administration chose not to defend against the suit, and agreed that the mandate was unconstitutional. But it argued that parts of the law, such as the Medicaid expansion, could exist without the mandate and should be left to stand.
On Monday, the Justice Department appeared to change its mind. It filed a four-line letter with the 5th Circuit Court of Appeals, where the case is now on appeal, urging it to uphold the lower court’s entire ruling. It’s no longer splitting the baby.
Chances are, this will not affect the final outcome of the suit a great deal. The states leading the case were already pressing to undo the entire health law. The fact that Team Trump now agrees in full with them doesn’t change the facts of the case or legal calculations involved. It’s also worth keeping in mind that, previously, the administration argued that the court should strike down Obamacare’s protections for patients with pre-existing conditions, gutting a key piece of the law and likely sparking a massive fight in Congress over health care anyway.
So why bother ratcheting things up for minimal gain? Mulvaney believed it would make good politics, as did the White House’s Domestic Policy Council head Joe Grogan, an ally Mulvaney picked for his job. Vice President Mike Pence, Secretary of Health and Human Services Alex Azar, and Attorney General William Barr all pushed back, but the Mulvaney argument prevailed anyway. Here’s how the Times described it:
Mr. Trump has touted that he has kept his promises, Mr. Mulvaney and Mr. Grogan argued, and as a candidate, they said, he campaigned on repealing the health law. His base of voters would love it. Besides, they argued, Democrats have been campaigning successfully on health care, and Republicans should try to take it over themselves. This could force the issue.
This thinking is bizarre. Republicans tried and failed multiple times to repeal and replace the Affordable Care Act while they controlled both houses of Congress. Afterward, they were smashed in the midterms, losing their House majority in the process as Democrats hammered them for attacking protections for patients with pre-existing conditions. It is unclear what, if anything, they could pass now if millions suddenly lost their health coverage. There is almost certainly no issue they would less like to “force,” especially heading into 2020, which is why House Minority Leader Kevin McCarthy reportedly told Trump his decision on the lawsuit made zero sense. For Republicans running for re-election, putting health care on their plate would be a bit like making a bunch of vampires chow down on a basket of garlic bread.
But the logic is also classic Mulvaney, who, as a Tea Party congressman from a deep red South Carolina district, consistently backed politically unpopular and often fruitless confrontations with the Obama administration. During the debt ceiling battle in 2011, he suggested that a government default wouldn’t be too devastating (almost nobody agreed). He also supported the 2013 government shutdown over Obamacare. During his time as Trump’s budget director, he became known for proposing extreme spending cuts even Republicans blanched at and letting loose with cartoonishly coldhearted sound bites, like the time he came down on Meals on Wheels. It’s no surprise he’s urging yet another scheme that seems bound to backfire.
It is also easy to see how the thinking appealed to Trump, who is monomaniacally focused on the desires of his base and has repeatedly tried to engineer crises that would force his party to pass some sort of health care legislation, even though it is apparent to just about everyone else that they are incapable of it.
This speaks to why Mulvaney has been such a successful behind-the-scenes operator within the Trump administration: He knows what makes the president tick. They share a single-minded focus on conservative voters. And he’s put in enough hours golfing with Trump to solidify their personal relationship, while avoiding the mistakes that brought down his predecessors as chief of staff. As Politico notes:
While Mulvaney has been a low-key presence in Trump’s frenetic White House, the decision to take direct aim at Obamacare after the administration’s failure to repeal the law in 2017 offers a glimpse into how he wields his influence. Instead of focusing on limiting the access of other West Wing staffers to the president—something his predecessor John Kelly tried and failed to do—he has steadily built his own operation inside the White House and given his allies a direct line to Trump. They include Grogan, who took the reins of the Domestic Policy Council in late January.
In other words, Mick Mulvaney may seem like a buffoon. But he’s busy consolidating his power by egging the president on to embrace his own worst instincts. This probably won’t be the last time he makes Republicans—and everybody else—miserable.