Biden and the Affordable Care Act: Congressional Action, Executive Federalism, State Litigation, and Program Durability

Abstract

Partisan, fractious federalism has strongly shaped the Biden administration's efforts to reverse Trump's undermining of the Affordable Care Act (ACA). In June 2021, the U.S. Supreme Court sided with Democratic, rather than Republican, state attorneys general to uphold the ACA. This enabled Biden to proceed with legislative and executive initiatives to reinvigorate the program. Biden secured passage of the American Rescue Plan (ARP), which temporarily boosted ACA enrollments. He also successfully pursued several executive initiatives to bolster the program. The victories of Democratic state attorneys general and private litigants in the courts during the Trump presidency often provided the platform for Biden's success. On balance, the ACA's vital signs have improved under Biden. But the durability of these gains depends heavily on whether Congress approves Build Back Better legislation that extends ARP benefits, and whether Biden can overcome resistance by Republican states in the courts and otherwise (especially concerning waivers).