Collins once supported same attacks on ACA she now calls ‘disappointing’

Last week, Senator Susan Collins said she found the Trump administration’s refusal to defend the Affordable Care Act “very disappointing,” but in a previous legal brief, Collins made some of the same legal claims as the ACA’s current challengers, arguing that the entire law should be overturned.

This about-face and votes she has taken to undermine the ACA and put the Act in legal jeopardy are leading supporters of the health care law to accuse Maine’s senior senator of hypocrisy.

In 2010, Collins and 35 other U.S. senators signed on to an amicus curiae brief in the case of Florida v. Department of Health and Human Services. In that filing, authored by Senate Majority Leader Mitch McConnell, the lawmakers argued that the individual mandate is central to the Affordable Care Act and that the entire ACA should be struck down if the mandate is removed.

“[T]he individual mandate was at the heart of the Patient Protection and Afford-able Care Act (“PPACA”) and was essential to the passage of the entire law,” argued the senators. “The PPACA cannot stand without it.”

Collins and her Republican colleagues also argued that legislation would only have a “strong presumption of severability” and therefore be safe from wholesale repeal if one part is struck down if “the statute contains an express severability clause,” which the ACA does not.

The legal challenge Collins supported was partially successful at the Supreme Court. While the entire Act wasn’t repealed, the penalties for states that didn’t expand Medicaid were removed, leading to millions of Americans being denied coverage. Maine only expanded coverage years later following passage of a statewide referendum.

Letter expresses ‘profound disagreement’

On Monday, Collins sent a letter to newly-appointed Attorney General William Barr expressing “profound disagreement” with the DOJ’s decision not to defend any portion of the ACA before the Fifth Circuit Court of Appeals.

“Rather than seeking to have the courts invalidate the ACA, the proper route for the administration to pursue would be to propose changes to the ACA or to once again seek its repeal,” wrote Collins. “The Administration should not attempt to use the courts to bypass Congress.”

Citing previous decisions, Collins now also argues specifically that “[w]hile the ACA lacks a ‘severability clause,’ the courts have been clear that ‘the ultimate determination of severability will rarely turn on the presence or absence of such a clause.'”

Health care advocates say Collins’ newfound support for the Affordable Care Act is welcome, but suspect.

Not a ‘true change of heart’

“Collins and other Republicans running for office in 2020 recognize that joining Trump in his efforts to strike down the ACA is politically unwise. That political reality is probably driving her vehement condemnation of Trump’s recent attempts to strike down the Act, not an appreciation of universal health care or any true change of heart,” said Nancy Wanderer, a Legal Writing Professor Emerita at the University of Maine School of Law and amember of the grassroots organization Mainers for Accountable Leadership.

Collins initially voted against passage of the Affordable Care Act, then voted multiple times for repeal, but in July 2017 she cast a deciding vote to save the health care legislation.

Clergy arrested at Sen. Collins’ office in Portland after protesting her vote for the Republican tax bill. | Lauren Kennedy

In December of 2017, she cast a critical vote to weaken the ACA as part of the Republican tax bill, striking the individual mandate and paving the way for the current court challenge by Republican governors. At the time, she said she had guarantees from Republican leadership that other legislation would be passed mitigating some of the damage done to accessible health care, but those bills never advanced.

In December of 2018, she said she had no regrets about her anti-ACA vote and didn’t believe the court challenge would pose a serious threat. She also voted to confirm Justice Brett Kavanaugh to the Supreme Court despite his hostility to the health care law.

The senator has also refused to sign on to legislation directing the Senate Legal Counsel to defend the ACA against attacks in the case of Texas v. Azar.

Wanderer told Beacon that while it’s “encouraging” that Collins now “sees value in attempting to improve the Affordable Care Act rather than seeing it struck down entirely in court,” she said that the “timing of her apparent change of heart seems significant.”

“Polls have indicated that the ACA is viewed favorably by the vast majority of voters, Republicans and Democrats alike,” said Wanderer.

Her vote ‘opened the door’

In a press statement, Brad Woodhouse, executive director of the national health care advocacy organization Protect Our Care, decried Collins’ public letter as being “empty” and pointed out the actions she has taken that precipitated the DOJ’s current move.

“Susan Collins may want us to believe that a letter to the attorney general will absolve her ownership of the Trump lawsuit, but we know that her vote on the Trump tax bill opened the door for this disastrous move to ‘terminate’ our health care,” Woodhouse said.

Woodhouse also noted that Collins voted to confirm both Barr, “who is executing Trump’s disastrous lawsuit,” as well as “pro-repeal Justice Brett Kavanaugh, and once again millions of people are in danger of losing their live-saving care.”

“Mainers deserve a leader who will do more than write an empty letter,” he said.

(Photo: Drew Angerer | Getty Images)