The Washington Post Fact Checker Turns Fact-Checking on its Head
Health care has emerged as a key issue for the 2018 mid-term elections. The mainstream press has largely supported a narrative that support for a lawsuit asserting the Affordable Care Act is unconstitutional shows opposition to protections for pre-existing conditions. The Washington Post Fact Checker published a fact check showcasing the error in that narrative.
The Lawsuit in a Nutshell
When the Republican tax cut bill got rid of enforcement of the tax penalty for not having insurance, opponents of the Affordable Care Act realized that the move negated the reasoning Chief Justice John Roberts used in the Court’s 2012 ruling justifying the ACA’s constitutionality. In his opinion, Roberts wrote that viewing the penalty as a tax put the requirement to buy insurance under the Constitution’s provisions permitting Congress to levy a tax. Neutering the tax left the ACA with an apparently unconstitutional requirement to buy insurance.
Howard Gleckman of the left-leaning Tax Policy Center explained:
Because the High Court found that the penalty for not having coverage is a tax and not a fee or a banana, it ruled Congress has the constitutional authority to impose such a levy. In effect, the 5-4 decision written by Chief Justice Roberts concluded that Congress can tax you for failing to acquire insurance. Thus, the mandate as created by the ACA is constitutional.
But the Court rejected the White House’s main legal argument—that Congress has the authority under the Commerce Clause to require people to get insurance.
After the GOP tax bill neutered the individual mandate tax, ACA opponents filed suits asserting that the ACA mandate without the tax is unconstitutional. And the Trump administration partially conceded that argument.
The Milwaukee Journal-Sentinel (bold emphasis added):
The Trump administration has partially sided with the states, agreeing the mandate that people have health insurance now is unconstitutional.
The administration also contends the law’s provisions that bar health insurers from denying coverage or charging people more based on their health cannot work without the mandate and must be struck down.
The administration has not challenged other parts of the law and does not contend the entire law is unconstitutional.
That means the Trump administration thinks much of the ACA is severable from the individual mandate. But not guaranteed issue.
The Mainstream Media Narrative
The media narrative says Republican support for the ACA lawsuit shows Republican opposition to protections for people with pre-existing conditions.
The Washington Post Fact Checker, Glenn Kessler, expressed that narrative in a reply tweet to Mr. Trump:
Uh, Sessions says he stopped defending the provisions at your direction –> https://t.co/m5O9CsNksM https://t.co/fQCcqWSOAi
— Glenn Kessler (@GlennKesslerWP) October 31, 2018
The link Kessler used in his tweet, referring to his own (with Meg Kelly) Fact Checker story, makes clear that Kessler thinks Trump is doing a flip-flop.
Kessler’s Fact Check Fail
Kessler’s reasoning stems from a slanted interpretation of Attorney General Jeff Sessions’ statement about the ACA lawsuit:
“After careful consideration, and with the approval of the President of the United States, I have determined that, in Texas v. United States, No. 4: l 8-cv-00167-O (N.D. Tex.), the Department will not defend the constitutionality of 26 U.S.C. 5000A(a), and will argue that certain provisions of the Affordable Care Act (ACA) are inseverable from that provision.”
— Attorney General Jeff Sessions, in a letter, June 7, 2018
In plain English, the attorney general’s letter means that the Trump administration no longer supports a provision of the Affordable Care Act, a.k.a. Obamacare, that makes it possible for people to buy insurance if they have preexisting health conditions.
Contrary to the Fact Checker’s judgment, Sessions’ statement does not mean the Trump administration does not support the ACA’s provisions on pre-existing conditions.
Sessions’ statement simply admits the ACA’s provisions on pre-existing conditions are not legally severable from the ACA’s individual mandate.
The difference is not small.
And it’s easy to illustrate the gulf between the facts and Kessler’s spin on the facts. The Obama administration Justice Department took the same position on severability that the Trump Justice Department takes.
Sarah Kliff, in the Washington Post (bold emphasis added):
The Obama administration … argues that the mandate is severable from a lot of the law, but not all of it. Specifically, the Department of Justice says that if the court strikes down the mandate, it should also repeal the health reform law’s guaranteed issue provision, which requires insurers to accept all customers regardless of their health-care status.
In plain English, then, the Obama administration was saying that it believed the individual mandate was not severable from the ACA’s provisions protecting guaranteed issue.
The Obama administration agreed with the Trump administration.
Acknowledging Inseverability is Not the Same Thing as Opposition
Guaranteed issue and community rating make up the ACA’s primary protections for people with pre-existing conditions. The first says insurance companies cannot refuse insurance to people with pre-existing conditions. The second limits insurance companies’ ability to charge more for taking on higher risk.
The Obama administration agreed with the Trump administration on severability. So shouldn’t Kessler conclude that the Obama administration took its position on severability because it opposed protections for pre-existing conditions?
Of course not. And it doesn’t make any more sense to draw that conclusion about the Trump administration when it takes the same position.
Republican support for the ACA lawsuit does not show opposition to protections for pre-existing conditions.
Fact checkers claiming otherwise need to check their facts.