During debate over the Affordable Care Act in 2009, a prominent member of the U.S. House of Representatives made clear that any new federal health care legislation must create a framework for portable health care benefits in order to prevent aspiring entrepreneurs from being shackled to their jobs.
“[T]he key question that ought to be addressed in any health care reform legislation is, “Are we going to continue job lock, or are we going to allow individuals more choice and portability to fit the 21st-century workforce?’”
The House member who asked that question was not then-Speaker Nancy Pelosi (D-Calif). It was current House Speaker Paul Ryan, who was then and is now deeply opposed to the ACA. While Ryan did not expressly mention protections for people with pre-existing conditions in that specific statement, he did hint at the need for such safeguards because the best way to end “job lock” is to require insurance carriers to offer health coverage to customers with pre-existing conditions. What’s more, this statement unintentionally undermines a legal challenge to the ACA being made by some of Ryan’s allies.
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In an ongoing federal lawsuit, a group of 20 state attorneys general is arguing that the ACA is unconstitutional, this time on the grounds that when Congress repealed the ACA’s individual mandate penalty in the 2017 Tax Cuts and Jobs Act, it invalidated much of the health care law. They argued that the mandate is central to the ACA because it feeds healthy people into the health care marketplace, which is necessary to help insurers offset the cost of covering people with pre-existing conditions. Without this offset, the attorneys general claim, the requirement to cover customers with pre-existing conditions should be struck down.
There is no denying the individual mandate was a pillar of the ACA, but ending the individual mandate is not some sort of silver bullet that can be used to gut the entire ACA. Among the strongest arguments against that idea is the original intent of the lawmakers who voted for it. Pelosi, for one, has been clear that Congress intended to protect people with pre-existing conditions, and that doing so would help end job lock.
“Many people that we had heard from in the course of the debate said they were job-locked,” Pelosi said in June 2018. “No matter what their credentials, their experience, their education or back to their experience in the field — they were job-locked if they had a child with a pre-existing condition or a family member. They simply did not have that mobility, which is unfortunate for their families and for our economy.”
As for the argument that Congress intended to repeal the entire ACA and end mandatory coverage for pre-existing conditions when it repealed the individual mandate last year, that claim falls apart pretty easily. Just ask Senate Majority Leader Mitch McConnell (R-Ky.).
“Everybody I know in the Senate — everybody — is in favor of maintaining coverage for pre-existing conditions,” McConnell said in June 2018. “There is no difference in opinion about that whatsoever.”
If successful, the latest challenge to the ACA would not only defy congressional intent, it would also destroy gains made by entrepreneurs in the United States. After all, a survey of entrepreneurs conducted in late 2016 found about one-third of small business owners said the ACA helped give them the confidence to start their own business.
What’s more, the ACA has been a game changer for small business employees and self-employed entrepreneurs, who were disproportionately uninsured before the law went into effect. In 2013, more than 28 percent of small business employees were uninsured, while nearly three in 10 self-employed entrepreneurs were uninsured. By 2017, however, only 19.4 percent of small business employees were uninsured, and as of 2016, the uninsured rate for solo entrepreneurs fell by 35 percent.
The attorneys general challenging the ACA aren’t just making a weak legal argument. They’re also making a bad argument for our economy.
John Arensmeyer is a former attorney and small business owner who is the founder & CEO of Small Business Majority.
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