When then-President Barack Obama signed the Affordable Care Act (ACA) into law on March 23, 2010, then-Vice President Joe Biden was caught on mic whispering to him that “this is a big [expletive] deal.” It shouldn't come as a surprise, then, that President Biden hopes to make the ACA an even bigger deal, expanding it to millions more Americans. He may even succeed.
For starters, as long as Mr. Biden is president, the ACA is safe from being repealed and, most likely, from being overturned by the courts. That in itself is a big deal. Not a day has gone by since the ACA became law when opponents have not tried to repeal it in Congress or overturn it in the courts, and they have very nearly succeeded.
Lawsuits challenging the ACA's constitutionality on three occasions have made it all the way to the Supreme Court, which narrowly upheld the law by a 5-4 vote in 2012 and by 6-3 in a 2015 case. This past fall, the Supreme Court heard arguments in yet another constitutional challenge to the law's individual insurance mandate supported by President Donald Trump, the Department of Justice, and 20 Republican-led states. President Biden has since reversed the federal government's support for that lawsuit, and with the Democrats also controlling both the House and Senate, the law likely would survive even if the Supreme Court issues an adverse ruling, because Congress could pass corrective legislation to keep it intact.
Outrage over the ACA helped spawn the Tea Party movement, which contributed to Republicans taking control of the House and Senate in 2012, and while they were not able to advance repeal with Mr. Obama as president, they were able to block any expansions. When President Trump was elected in 2016 on a promise to repeal the ACA, he and the GOP-controlled Congress tried several times to do so, failing only because GOP lawmakers could not agree among themselves on an alternative. The 2018 mid-term elections put the Democrats in control of the House of Representatives and put an end to any prospect of repeal. Yet the Trump administration used its executive authority and federal rulemaking to erode many of the ACA's most important protections, including allowing sale of short-term and association health insurance plans that do not have to cover essential benefits mandated for all other plans.
But today is a new day for the ACA. Within days of being sworn in, President Biden issued executive orders requiring that federal agencies begin the process of reversing any regulations issued by the previous administration that eroded coverage or consumer protections, including the short-term and association health plan rules. Another order requires that federal agencies take steps to reverse the public charge rule, which denies legal residency status to immigrants who use public benefits like Medicaid. The Biden administration also is examining rules that allow employers to opt out of covering contraception. While it may take several months for all of these rules to be fully withdrawn and replaced, the days when insurers could opt out of covering cancer treatments, maternity care, and other needed services are numbered.
The Biden administration also plans to reverse Medicaid waivers that allow states to make eligibility contingent on work and other requirements that stand in the way of people getting care, or to put a per capita cap on benefits for Medicaid enrollees. It launched a new enrollment period for people to sign up for coverage through ACA marketplace plans and is restoring funding for outreach and navigator programs.
There is only so much the administration can do on its own to expand ACA coverage. With President Biden's support, Congress on March 11 passed a budget reconciliation bill to significantly expand ACA coverage. The law will increase the dollar amount of the premium subsidies to buy coverage from ACA marketplace plans and allow people with incomes above 400% of the federal poverty level to qualify for subsidies. It subsidizes purchase of COBRA health plans and expands COBRA coverage to unemployed persons who are not currently eligible.
It also expands Medicaid, offering postpartum benefits to women for 12 months after childbirth. It sweetens the pot for Medicaid expansion, increasing the federal government's base contribution by 5% in 2022 and 2023 to states that agree to cover anyone with incomes up to 138% of the federal poverty level.
Taken together, these changes would result in tens of millions more Americans becoming eligible for coverage and lower costs for people who qualify for coverage.
President Biden's ambitions to add a public option to the ACA and open up Medicare to any person age 60 or over face an uncertain future, because they too would likely have to pass through another budget reconciliation bill later this year or early next to overcome an expected GOP filibuster if proposed through regular legislation.
Yet the simple fact that the ACA is here to stay, and that the new administration and Congress are taking steps to reverse policies that created barriers to coverage and expand it where they have necessary legal authority, is in itself good news for the millions of Americans who will become eligible for enhanced coverage, and for ACP, which has long advocated that the ACA be expanded and improved to cover more people at less cost. Should the provisions proposed in the House bill became law, many millions more will benefit. And perhaps we could still see the day when a robust public option or Medicare buy-in becomes law.
These changes will not get the country to true universal coverage, but they would bring us closer. And that would truly be a very big deal for the American people.