How GOP Lawyers Undercut Their Own Case Against Obamacare

The lawsuit makes even less sense than it did before, which is saying something.

The Trump administration lawyers trying to get rid of the Affordable Care Act may have undermined a central argument of their case, thanks to an admission in their very own court papers. 

The filings were part of a lawsuit, now called Texas v. U.S., that started with 20 Republican state officials and claims that a fatal constitutional flaw in Obamacare requires invalidating the entire program. President Donald Trump instructed the Justice Department to support the lawsuit, and if it succeeds, 20 million people could lose their health coverage.

It’s difficult to find respectable legal experts who think the case is persuasive, and it’s easy to find ones who think it is laugh-out-loud weak. But in the federal courts, the lawsuit has already won support from three Republican-appointed judges, which is why it seems destined for the Supreme Court

The question now is when that might happen. In December, after the most recent ruling, Democratic attorneys defending the Affordable Care Act asked the justices to take the case right away. Republicans bringing the lawsuit said it was fine to wait and, last week, the justices said they agreed

That likely pushes a hearing and ruling back until after the 2020 election, which is presumably why Republicans were hoping for the delay. Keeping the lawsuit in the news would probably hurt the Republicans politically, given strong public opposition to GOP repeal efforts.

But in the brief laying out the case for taking things slow, Trump’s Justice Department lawyers made a curious statement: They said the Affordable Care Act’s supposedly unconstitutional provision has no practical impact. 

That raises the question of why courts should even hear the lawsuit, let alone end a program on which tens of millions depend for health care.

There doesn’t appear to be a good answer.

What The Republican Lawsuit Claims

When Congress wrote the Affordable Care Act back in 2010, it created an “individual mandate” that required people to pay a fine if they didn’t get health insurance.

The penalty had several purposes, chief among them to make sure healthy people signed up for coverage before getting sick. In 2012, the Supreme Court upheld the mandate as a legitimate use of congressional authority to levy taxes.

Five years later, with Trump in charge, Congress passed legislation that reduced the penalty to zero. But the legislation allowed the statutory language of the mandate to remain. According to the GOP lawsuit, that transformed the mandate into a “command” to buy insurance that law-abiding people will feel compelled to obey. Two individual plaintiffs in the lawsuit say that’s exactly what they are doing.

Congress has no authority to do that, the lawsuit says, making that provision unconstitutional. And because Congress originally envisioned the mandate as an essential part of the Affordable Care Act, the lawsuit argues, the entire program has to go.

How can someone be injured by a provision without any concrete consequence? Katie Keith, Georgetown Law School

Such a ruling could wreak havoc. Protections for people with preexisting conditions would come off the books and roughly 20 million people who now get Medicaid or subsidized private insurance would lose it, according to projections from the Urban Institute, a nonprofit public policy research organization. 

In 2018, Judge Reed O’Connor, a Republican appointee, ruled in favor of the lawsuit. Last year, two Republican appointees on a three-judge panel at the U.S. 5th Circuit Court of Appeals agreed with the arguments about the mandate, but sent the case back to O’Connor with instructions to sift through the statute and decide whether at least some parts can remain.

That prompted the appeal for an expedited hearing from the Democratic lawyers who are defending the law because Trump won’t. They represent 20 states, the District of Columbia and the U.S. House of Representatives.

The Supreme Court’s one-sentence declaration turning down that request makes it impossible to know why the justices made that decision or what they will do next. They could still take the case in the coming term, which begins in October, or wait until the lower courts are finished sorting through the case.

How Republicans Undermined Their Own Argument

In briefs urging the court to wait, Trump administration lawyers said there was no rush because the mandate “no longer subjects any individual to any concrete consequence.”

That is quite a concession.

If the mandate has no practical effect, then it’s difficult to comprehend how it can be a command to buy insurance ― in which case, there’s no constitutional problem for the courts to solve.

It doesn’t take a fancypants law degree to see that. But certain legal doctrines matter here and one of them is the concept of “standing,” which is the idea that a plaintiff must show injury in order to file a lawsuit. 

“If there’s no major harm from the decision and it’s meaningless to invalidate the mandate, then plaintiffs don’t have standing to bring the suit in the first place,” Leah Litman, a constitutional law professor at the University of Michigan, told HuffPost. “They’d only have standing if the mandate injures them.”

A lack of consequences from the penalty-less mandate would appear to undercut another GOP claim: that the courts cannot “sever” the mandate and let the rest of the law survive.

If there’s no major harm from the decision ... then plaintiffs don’t have standing to bring the suit in the first place. Leah Litman, professor at the University of Michigan Law School

“If it’s no big deal for the rest of the ACA to exist without the mandate, which will happen for the rest of the litigation, then the ACA is workable without the mandate,” Litman said. “There goes their severability argument.”

Katie Keith, a health law professor at Georgetown University who has written extensively about the case for the journal Health Affairs, said she agrees on both counts.

“The Trump administration’s (latest) position undermines the plaintiffs’ arguments on both standing and constitutionality,” Keith wrote in an email to HuffPost.

“How can someone be injured by a provision without any concrete consequence?” she wrote. “And how can the mandate be read to compel someone to purchase insurance if the government is admitting that the provision has no consequences?”

Why Else The Case Makes No Sense

These are by no means the only problems with the lawsuit, as a chorus of legal experts, liberal and conservative alike, have been arguing from the get-go.

The weakest claim may be the contention that striking down the whole law is necessary because the courts must respect congressional intent and Congress in 2010 thought the whole law depended on the mandate to function. But in 2017, Congress was fully aware that the rest of the Affordable Care Act was remaining in place when it decided to zero out the penalty. 

What Congress did in 2017 supersedes what it did in 2010, as a high-profile, ideologically diverse group of law professors wrote in a friend of the court brief. Two of them were conservative- or libertarian-leaning experts who played key roles in previous challenges to the health care law.

One of those professors, Jonathan Adler of Case Western University, has since pointed out yet another way recent GOP actions have undermined the new case. By passing various measures that have modified the Affordable Care Act, Adler noted on Twitter, “Congress has made clear its understanding that zeroing out the mandate did not negate the rest of the law.”

With so many flaws, it’s difficult to imagine the case winning over five justices who have already rejected more legally plausible challenges to the Affordable Care Act. Then again, it was difficult to imagine these arguments prevailing in the lower courts. Somehow they have.