The core concept of the GOP lawsuit is laughable and incoherent.
A Hail Mary lawsuit aims to bring down the law. Its rationale is laughable.
T he Supreme Court will once again decide Obamacare’s fate. It will step in to handle a Hail Mary challenge to the law spearheaded by several red states and effectively endorsed by the Trump administration, even though the lower courts aren’t quite done with the case yet.
It’s unlikely that SCOTUS will invalidate the law this time around, especially with John Roberts positioned roughly in the Court’s center. And barring some unforeseen developments, the case won’t be decided until after the election this year. But briefs will be filed before then, and oral argument could happen as early as October — meaning there’s plenty of time for the lawsuit and the Trump administration’s support of it to have an impact on the November results.
As I have written before, the bottom line here is that Republicans have needlessly put themselves in a bad situation. They are dogs chasing a mail truck through rush-hour traffic.
Here’s the somewhat confusing history. When Obamacare was originally enacted, the individual mandate was seen as a crucial element of the law. If people were not required to buy insurance when they were healthy — or if the requirement were not backed up by a big enough penalty — they would be tempted to wait until after they got sick and started racking up medical bills, and only then ask an insurance company to pick up the tab. This behavior drives up premiums and can lead to a “death spiral”; insurers no longer had any power to stop it themselves, because the law banned them from discriminating against people with pre-existing conditions.
The Right, of course, hated the idea of forcing people to buy the products of private companies, and fought the mandate in court. But in 2012, John Roberts upheld the rule on the grounds that the mandate could be seen as a tax: Congress couldn’t force everyone to buy a private product, but it could tax people who chose not to.
Fast-forward a few years, and the Republicans were back in charge and doing what they do best, by which I mean cutting taxes. And in the meantime, expert opinion on the mandate had shifted quite a bit, toward a view that the rule kept premiums down somewhat but was not needed to stave off a total meltdown in the individual market. So, as part of their 2017 tax bill, Republicans took out the mandate.
Well, with one twist: They passed their bill through the filibuster-proof “budget reconciliation” process, which meant that every provision they enacted had to have an effect on the budget. This allowed them to reduce the penalty to $0, and to run around town openly saying the mandate had been “repealed” — but technically speaking, the law still said that everyone “shall” buy health insurance, and also retained an argument that the mandate was important to the operation of the law as a whole.
Put all that together and you get the new argument against Obamacare. The mandate is still in the law, but it can no longer be justified as a tax, because its $0 penalty can’t raise any money. And since the mandate is still a crucial part of the law (it says so right in the text!), the entire law has to be struck down if the mandate is struck down — in legal jargon, the mandate is not “severable.”
A district court bought into this line of argument, but then an appeals court asked for more details as to why the whole law, and not just parts of it, had to be struck down without the mandate. Normally the Supreme Court would let that process play out before getting involved, but given the import of the case, it’s going to step in now.
Where is this headed? Legally speaking, I doubt the Supreme Court will kill Obamacare, and not just because Roberts has voted in support of the law twice already. The core concept of the lawsuit — that a completely unenforceable mandate is so important that the rest of Obamacare can’t work properly without it — is laughable. No one actually believes that, least of all the Congress that deliberately yanked the mandate’s teeth and bragged about it. In addition, it’s not clear anyone has “standing” to challenge a law that can’t result in any punishment.
But the politics of this could be bad. Obamacare didn’t become popular until the GOP got close to killing it and replacing it with something else. Now, with a presidential election on the horizon, GOP actors threaten to bring down the law judicially — meaning it won’t be replaced by anything unless Congress can come together to pass something new. So just when everyone forgot about the fiasco that was the attempt to replace Obamacare during Trump’s first year, the health-care status quo is in jeopardy again, and again Republicans are the culprit. The media will be paying a lot of attention to the pre-existing-condition protections this lawsuit targets, and to the weaker protections that Republican replacement plans have usually offered.
In theory, it would be easy for Congress to end the lawsuit — just remove the individual mandate from the law entirely, using the normal lawmaking process rather than the “reconciliation” rules that resulted in the current mess. But that would require Republicans to save Obamacare (even if they could try to sell their votes as being “against the individual mandate”) and Democrats to give Republicans a way out. I’m not betting on that outcome. This will drag on for a while.
And in the unlikely event that the lawsuit does succeed, it’s not clear what would happen next, especially if Congress remained divided. Gridlock and pandemonium? A new law somewhat to the right or left of Obamacare? Medicare for All? (Ha.)
It would be kind of funny, actually, if lawmakers ended up just reenacting Obamacare, sans the mandate, because they couldn’t agree on anything else.