The GOP’s Self-Made Health-Care Conundrum

T his really ought to be a good, or at least neutral, election for Republicans as far as the issue of health care is concerned.

Yes, the party failed horrifically to repeal and replace Obamacare during President Trump’s first term. But that’s ancient history today, and the party has also scratched up some big wins: The individual mandate is dead, the system is about as stable as it’s ever been, and various executive actions have freed Americans to buy non-Obamacare plans if they want to. Amid all the chaos and ineptitude, the GOP somehow managed to keep what was popular about the law while eliminating the worst bits.

Meanwhile, many of the Democratic candidates are touting expensive, disruptive ideas such as Medicare for All. Especially if the more moderate Joe Biden doesn’t win the nomination, Republicans could have a field day with this. Voters want stability in health care: When Obamacare was passed, it was unpopular — but it gained popularity when Republicans went after it. It’s not hard to see what happens when Democrats don’t just want to reform and beef up the individual market, but are directly attacking employer-based health care.

So why is the Fifth Circuit, at the behest of several red states and with considerable support from the Trump administration itself, entertaining yet another lawsuit to strike Obamacare down?

As Kaiser Health News reminds us, the appeals court’s decision could come soon, and it will probably be stayed while the case heads up the food chain to the Supreme Court. Especially if the Fifth Circuit sides against Obamacare, the uncertainty could force Republicans to get behind a detailed replacement plan — and defend that plan against the inevitable attacks from the left — rather than sticking to beating up on Bernie Sanders’s socialist nonsense.

To be sure, the lawsuit does not make a compelling argument, and it faces pretty long odds even in front of a conservative Supreme Court. It hinges on the fact that when Republicans “repealed” the individual mandate, what they actually did was reduce the penalty to $0. The law still commands the public to buy health insurance; it just doesn’t allow the government to enforce that command in any way, shape, or form. The change was made this way to comply with the technical rules of the Senate “reconciliation” process.

In 2012, the Supreme Court upheld the mandate on the notion that it was a “tax” on people who chose to go without insurance, rather than a penalty for breaking the law, and therefore was constitutional under Congress’s taxing power. The idea behind the lawsuit is that since the provision doesn’t collect any revenue anymore, it can’t really be a tax — and that, more important, it’s still a crucial element of the law, which means that if it’s struck down it can’t be “severed” from the rest; the whole law has to go. The Trump administration agrees with the lawsuit halfway: In its view, some key parts of the law but not others are inseverable. The targeted provisions include protections for those with preexisting conditions.

Words can hardly describe how silly this is. For one thing, it’s not clear anyone has standing to challenge a “mandate” that threatens them with nothing but a $0 penalty. For another, no one on the face of this planet has ever actually believed that an unenforced mandate is crucial to the operation of Obamacare as a whole. Obamacare’s original drafters certainly thought the enforced mandate they enacted was important — and explained their reasoning in the law’s findings, which remain in the text — but experts’ view of this matter changed dramatically as the law was implemented, and ultimately Congress went ahead and deliberately killed the penalty.

Nonetheless, a district judge sided with the plaintiffs, and it’s unclear what the appeals court will do. Even if John Roberts ultimately upholds Obamacare yet again, that will take time, and an appeals-court verdict against the law would give Democrats lots of ammunition to use on Republicans, who failed to replace the law, placed it in severe legal jeopardy, and now have no replacement cued up.

As for an actual plan, Trump promises a “phenomenal” one, and certainly Republicans have lots of ideas for overhauling the health-care system. But as we saw a couple of years back, it’s very difficult to get the whole party united behind a single proposal — and it will be even harder to enact conservative plans so long as the Democrats control at least one chamber of Congress. Whatever the Republicans put forward, Democrats will call skimpy, cruel, and politically unserious. This debate will distract from the Democrats’ own plans, many of which happen to be socialist, unaffordable, and politically unserious.

If it really comes down to it — if the Supreme Court strikes down Obamacare — I suspect what will happen is a simple fix: Congress will fully repeal the mandate, passing the change with 60 votes in the Senate to avoid the reconciliation rules that created this awkward situation to begin with. Depending on the exact partisan balance, one side or the other (or both) might get an extra concession — Democrats might get, say, some subsidy boosts, or Republicans might get to write some of Trump’s executive actions directly into the law to protect them from court challenges or future administrations. Bipartisanship is easy when it’s urgently needed to preserve the status quo in the face of utter chaos.

For the time being, though, this lawsuit threatens to create a counterproductive distraction in the run-up to the 2020 election. Nice work, guys.