Probably not.
Probably not.
W ith the possibility of a 6–3 originalist Supreme Court on the table, the Left is freaking out that the justices will finally kill Obamacare. At the same time, the Trump administration has announced its intention to protect people with preexisting conditions if the law falls.
Everyone can calm down. The likelihood that the Supreme Court will strike down the law on the basis of the ridiculously weak lawsuit before it is vanishingly small. And even if that did happen, political pressure would probably force Congress to put the law back into effect, which it could achieve by removing a block of text that doesn’t even do anything.
That said, if both those layers of protection failed, Trump’s new executive order would be unlikely to save the day.
* * *
The lawsuit, which the Court should hear in November and rule on in the spring or summer of next year, is silly in the extreme. (I’m going to retread some ground here, so if you’re already familiar with it, skip to the next set of asterisks.)
When Obamacare originally passed, it contained a mandate that Americans buy insurance, a penalty for those who failed to do so, and a “finding” that the mandate was needed to make the rest of the law work. But expert thinking evolved as to whether the mandate was really necessary, and conservatives hated the infringement on personal freedom either way. A previous round of legal wrangling over the law ended with Chief Justice John Roberts’s upholding its constitutionality on the grounds that the mandate was a tax. Increasingly frustrated Republican lawmakers took aim at the provision when they got the chance.
Owing to arcane rules in the Senate, however, all they could technically do was reduce the penalty to $0. So now, the law basically says that Americans have to buy insurance, and if they don’t, they must suffer the fearsome punishment of a $0 penalty. Republicans bragged that they’d “repealed” the mandate, and just this week the president said they “got rid” of it, because that was the effect the change had.
Putting all that together, the lawsuit’s argument is that since a $0 penalty can’t be a tax (as it raises no money), per Roberts’s decision in the older case, the remaining command to buy insurance is unconstitutional. That’s no big deal, as the command isn’t even being enforced. But the lawsuit further claims that the mandate is so crucial to the law that if the mandate is struck down, the rest of the law has to go too.
There are numerous legal problems with this argument, as Jonathan Adler and others have laid out. But the core obstacle is that no one on this entire planet sincerely believes that a mandate backed up by a $0 penalty is necessary to the operation of the rest of the law. Even people who’ve supported previous lawsuits against Obamacare, including Adler, have come out against this claptrap.
Several conservatives on the Court are on the record saying judges shouldn’t throw out entire laws on the basis of small flaws, as well, as the New York Times recently explained:
Chief Justice John Roberts and Justice Samuel Alito have ruled in several recent cases that courts should try to preserve existing laws as much as possible when eliminating problematic provisions. And Justice Brett Kavanaugh wrote a majority opinion this term — while the Texas case was pending — agreeing with such reasoning.
“The court presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute,” Justice Kavanaugh wrote in the majority opinion upholding a congressional ban on robocalls. (He was joined by Justice Alito and Chief Justice Roberts.)
His opinion says the court’s duty should be “to salvage rather than destroy the rest of the law passed by Congress and signed by the president.”
Not to mention the intense pressure these folks are under right now to preserve the Court’s legitimacy.
* * *
For all of the above reasons, I would be utterly stunned if the Court struck down or even substantially weakened the law. But say it does. What then?
If Obamacare abruptly disappears, there will be chaos in the individual health-insurance market. Tens of millions of people will lose coverage and subsidies. Insurers will lose business. States will lose Medicaid money. Preexisting-condition protections will be gone. The public will be furious, not just because of the chaos in itself but also because the law now has majority support.
That should all add up to a ton of political pressure — more than enough, I would wager, to break through any partisan acrimony standing in the way. The simplest solution for Congress would be to just delete the offending command to buy health insurance, which, again, isn’t even being enforced. Republican hardliners might refuse to save Obamacare, but enough people in both parties would probably get on board, possibly with some extra sweeteners or reforms tossed in to attract members who are on the fence. Such a legislative fix will become even more likely if the Democrats gain ground in November and there’s a threat to kill the legislative filibuster looming.
You might wonder at this point: What if Congress doesn’t step in? Well, then, yeah: We are in deep trouble.
President Trump signed an executive order on preexisting conditions Thursday. The order says that it’s the “policy of the United States” to “ensure that Americans with pre-existing conditions can obtain the insurance of their choice at affordable rates” — even if Obamacare is struck down — and instructs cabinet secretaries to keep working on ways to improve health-care access.
The thing is, if push comes to shove, it’s not clear what legal authority the executive branch could use to reinstate protections for those with preexisting conditions. Federal law is complicated and full of provisions that give the president too much discretion, but the simple fact is that it was often legal, especially in the individual market, to discriminate against people with preexisting conditions before Obamacare. If the law goes, the protections it affords such people will too, unless the executive branch can actually point to a different law giving it the authority to recreate the protections via regulation.
The health-law expert Nicholas Bagley has flatly stated that “Congress hasn’t delegated to President Trump the power to prohibit discrimination against the sick”; other analysts have been similarly dismissive. And of course, no change to how we treat preexisting conditions will fix the other problems that overturning the law would create, including throwing countless people off of subsidized insurance plans.
The order could be valuable, however, in the event that the Court invalidates the preexisting-condition protections but not the rest of the law. (The preexisting-condition rules are the part of Obamacare most tied to the mandate because, back when the law was passed, many feared the protections would cause too many people to wait until they got sick before signing up for coverage — unless a mandate was in place.) In that case, the executive branch might be able to reinstate the protections on the still-standing Obamacare exchanges, as Josh Blackman has suggested.
Anyhow, it’s pretty embarrassing for the administration to support this lawsuit . . . and then scramble to come up with a long-shot plan for what happens if the justices actually rule for the plaintiffs.
That’s probably not going to happen, though.