Sometimes it seems the GOP’s crusade against “Obamacare” will never end.
It was just six weeks ago that Republicans suffered historic losses in the midterm elections, in no small part because voters were so angry about efforts to repeal the Affordable Care Act. By putting Democrats in charge of the House, voters made sure the GOP couldn’t try it again.
But now there is a new threat to the law, thanks to Reed O’Connor, a GOP-appointed federal judge in Texas who on Friday ruled in favor of a lawsuit that claims the ACA is unconstitutional. If his ruling took effect, the entire law would come off the books ― which would mean, for starters, that the number of people without insurance would increase by more than 17 million, according to an estimate from the Urban Institute.
His ruling is unlikely to survive appeal, in the opinion of most legal experts. Still, if the political history of the Affordable Care Act has shown anything, it’s that nothing is ever certain.
O’Connor’s decision makes the lawsuit’s implausible journey to success a little more plausible. In the meantime, it’s doing damage to both the law and people who benefit from it.
That’s perfectly in keeping with the pattern of the last few months and, really, the last 10 years ― during which Republicans have been doing everything they can to undermine the program, from Washington and in the states, even as they insist they support its goals of making sure everybody in America can get health care.
It’s a style of governing that should sound familiar, because it’s the way Republicans have long treated other large government programs that they want to tear down, even though those programs are popular and provide vital services. There’s no reason to think they’re going to stop now.
Even Conservatives Agree The Legal Argument Is Lousy
The central issue in the lawsuit, known as Texas v. Azar, is the ACA’s individual mandate ― and, in particular, its financial penalty for people without insurance. Republicans in 2017 reduced the penalty to zero as part of their tax cut, and you’d be forgiven for thinking that, by taking away a penalty, Congress would have made the law less constitutionally suspect, not more.
But you would be wrong, at least in the eyes of the 20 Republican state officials who brought the case.
In 2012, when the Supreme Court first heard a previous legal challenge to the law, the five-to-four majority upheld the mandate on the grounds that Congress has the power to levy taxes. If the penalty no longer has monetary value attached to it, the plaintiffs say, then the mandate can’t be a tax, removing its constitutional justification, and because Congress originally intended for the law to work as one giant, interlocking scheme, the whole law now has to come off the books.
It’s a crazy argument, as even conservative lawyers have said, because it ignores that Congress in 2017 clearly understood that it was leaving the rest of the Affordable Care Act in place even as it dialed the penalty back to zero. Congress is allowed to change its mind about how the law’s pieces fit together, as it clearly did last year ― only O’Connor seems not to have noticed.
That giant hole in the ruling’s logic is one reason so many experts doubt it will hold up on appeal. It would have to survive scrutiny from judges in the 5th Circuit and the Supreme Court, where Chief Justice John Roberts already passed up two opportunities to invalidate the law.
The Ruling Is Already Causing Damage
But even if O’Connor’s ruling gets reversed, it is already inflicting harm on some of the people who depend (or could depend) on the ACA.
O’Connor issued his ruling one day before the end of open enrollment for 2019 coverage, just in time to confuse last-minute shoppers about whether plans under the ACA were available anymore. As the case makes its way through the federal courts, insurers will have to entertain new doubts about the future of the market, potentially affecting their willingness to keep selling coverage.
Those effects might sound modest and, in isolation, they would be. But they are part of a broader campaign to undermine the law that has been underway ever since President Barack Obama signed it and that became a great deal more intense once President Donald Trump took control of the federal bureaucracy.
In the last two years, the Trump administration has nearly wiped out funds for government-approved counselors who help people enroll and for advertising the wares at HealthCare.gov, the federally run website where people buying insurance on their own can shop for coverage and apply for financial assistance.
It has also removed limits on junk insurance plans, made it easy for states to rewrite their insurance regulations and encouraged the use of work requirements in Medicaid that serve primarily to cull the rolls by making it difficult for people to file the paperwork required to stay in the program. (Just this week, Arkansas announced that its Medicaid enrollment has fallen by nearly 17,000 since requirements took effect this fall; there’s evidence to suggest this is mostly because demonstrating compliance is so difficult, in part because many poor people don’t have regular internet access.)
And this past year, in this very lawsuit, the administration refused to defend the ACA in court, even though the federal government traditionally defends statutes ― even ones the sitting president opposes ― except in cases of egregious constitutional infractions.
Three career Justice Department attorneys took their names off the brief, and one senior veteran of the department, Joel McElvain, left the department over that decision. (He recently told HuffPost and Axios that the administration’s posture was a decisive factor in his leaving.)
Republicans Keep Lying About Their Intentions
Throughout this time and especially during the midterm campaign season, Republicans insisted that they were not interested in taking away the coverage and protection that so many Americans get from the ACA.
They said they wanted to take away the bad parts of Obamacare ― in particular, the high premiums and deductibles for people who had them ― but not the good parts. It was the same basic promise of “great health care” for everyone that Trump has been making ever since his presidential campaign.
In reality, congressional Republicans had no alternative capable of delivering on his promise ― or theirs.
The GOP’s agenda on health care is to reduce government spending and regulation. It’s easy enough to defend this approach on conservative grounds, given that conservatives believe too much government undermines the economy, stifles liberty and absolves people of personal responsibility.
But these sorts of policies would inevitably result in more people struggling to get affordable care, not fewer. That is why, according to official projections, the repeal measures that the GOP took up in 2017 would have resulted in somewhere from 15 million to 32 million people losing insurance ― and countless more losing protections that would save them from financial ruin in case of serious illness or injury.
The way Republicans have tried to cloak their intentions on the ACA should not have surprised anybody, because it’s the very same approach they have used when trying to attack other safety net programs.
They have talked about “saving” Social Security when they have actually been trying to turn it into a system of private investment accounts. They have said they were “strengthening” Medicare when they were really seeking to make it a system of vouchers for private insurance. In both those cases, their ultimate goal was to end federal guarantees of support for people who need them.
Republicans Can Persist Because They Still Hold Power
The ruse didn’t work in 2018 and most of the candidates promising to preserve the ACA’s most popular features lost anyway.
But not all of them. One who got away with it was Republican Josh Hawley, who is about to become the new senator from Missouri. He’s one of the 20 state officials who brought the Texas v. Azar lawsuit ― as Missouri’s attorney general ― but he insisted he was not out to take away the pre-existing condition protections that O’Connor just ruled have to go.
Hawley’s victory helped Republicans keep and strengthen their majority in the Senate, even as they lost their House majority by historic voter margins. That’s because the Senate gives disproportionate representation to low-population states, which in today’s political environment means giving disproportionate representation to the GOP.
It’s one of several ways that Republicans have managed to hold on to power, despite holding positions wildly out of step with the majority of the public’s opinion. Others are through anti-democratic efforts like partisan gerrymandering and thinly veiled efforts to suppress minority, Democratic-leaning votes and — as they have done or are now doing in Michigan, North Carolina and Wisconsin — stripping power from newly elected state-level Democrats before they take office.
The Wisconsin example is particularly relevant because health care was a major issue in the campaign and the incoming Democratic governor, Tony Evers, campaigned on a promise to withdraw the state from the lawsuit. Now he can’t, because GOP Gov. Scott Walker, on his way out of office, signed a bill that gives authority over state litigation over to the legislature ― which, thanks to gerrymandering, remains under Republican control.
Sometimes parties that suffer the kinds of rebukes that Republicans did over health care in 2018 engage in some serious re-examination of their priorities or and platforms. That obviously isn’t happening here.
As long as Republicans have at least some ability to keep undermining the Affordable Care Act, they seem determined to focus on that rather than trying to come up with new ways of helping people get health care. And so the debate over Obamacare seems likely to linger at least until the 2020 elections and quite possibly beyond that.