If you buy the popular hypothesis that Chief Justice John Roberts is worried about the Supreme Court appearing too “political” or “partisan,” you have to figure he’s suffering from some heartburn this week. That’s because the most politically inflammatory and blatantly partisan lawsuit in recent memory appears to be a step closer to forcing itself onto the docket of the high Court. Li Zhou has the quick explanation for Vox:
The Affordable Care Act is being challenged in the courts yet again — and a Fifth Circuit decision could help determine whether that fight winds up going any further.
On Tuesday, the Fifth Circuit Court of Appeals heard oral arguments in the case of Texas v. Azar, a suit brought by 18 state attorneys general — and endorsed by President Donald Trump’s administration — that marks the latest legal challenge to the ACA. The hearing comes in the wake of a 2018 decision by District Court Judge Reed O’Connor, who determined that the ACA is unconstitutional now that Congress has rolled back the penalty requiring everyone who did not carry health insurance to pay a fine.
The general consensus on the oral arguments was that the two Republican-appointed judges on the three-judge panel hearing the appeal were sympathetic to O’Connor’s ruling:
The two Republican appointees, Jennifer Walker Elrod, appointed by President George W. Bush in 2007, and Kurt Engelhardt, appointed by President Trump in 2018, seemed particularly skeptical of the Democratic defendants’ argument that Congress had fully intended to keep the rest of the law when it eliminated the penalty for going without insurance as part of its 2017 tax overhaul.
But the discussion got a bit murky, in part thanks to the eccentric positions of the Trump administration in the litigation, as the New York Times noted:
The arguments did reveal some tensions between the Republican states that brought the case, led by Texas, and Mr. Trump’s Justice Department. For example, a lawyer for Texas took issue with a puzzling new Justice Department position — revealed in a May brief — that the ruling should apply only in the 18 plaintiff states, not nationwide. The Republican states would need to evaluate if they had “been the victim of a bait and switch,” said the Texas lawyer, Kyle D. Hawkins.
In another wrinkle, August E. Flentje, a lawyer for the Justice Department, appeared reluctant to answer questions from Judge Elrod about how applying the ruling only to the plaintiff states would work. He was also vague about another new and surprising position the administration mentioned almost in passing in its May brief: that some pieces of the health law, though not its insurance provisions, should be preserved.
“A lot needs to get sorted out and it’s complicated,” Mr. Flentje replied.
No question about that. But this is not an optimal position for a Justice Department attorney to take in a case with such high stakes as this one, as reflected in Li Zhou’s assessment:
The stakes of the lawsuit are significant: If Obamacare were, in fact, ruled unconstitutional, that could mean that health insurers could once again refuse coverage or otherwise discriminate against patients who have preexisting conditions. Additionally, it would mean that roughly 20 million people who obtained insurance after the ACA was implemented could lose it …
The court’s decision could also have major political implications for 2020. Next year’s elections are approaching rapidly, and this case is once again putting the ACA and the fight for health care — a subject Democrats successfully ran on in 2018 — at the center of the political conversation. If another challenge were to come in front of the Supreme Court, it’s all but certain Democrats will rally voters as they attempt to defend the law.
Total victory for the Republican AGs, moreover, could present the GOP with extremely unsavory options going forward, as conservative columnist Ramesh Ponnuru has pointed out:
If the Affordable Care Act were to lose in court, and Congress and the president failed to agree on legislation afterward, Americans would go through the largest disruption in health-care arrangements that Washington has ever imposed.
In turn, that would create a political problem for Republicans. They have long said they wish to repeal Obamacare while making sure that its beneficiaries, especially those with pre-existing conditions, have access to affordable coverage. If a lawsuit they launched succeeds in delivering the first half of that agenda, voters will expect them to deliver the second. The Democratic majority in the House would presumably be able rapidly to pass a law that simply re-enacts Obamacare and prevents any disruption to it.
Republicans would then have three choices: pass their own dream health-care bill; accede to the Democrats’ Obamacare-affirming bill; or find a bipartisan compromise.
The second option just won’t happen, and if there’s a “bipartisan compromise” available, it sure has eluded both parties for over a decade. As for the first option: Republicans don’t have any “dream” health-care bill of their own, and even if they could devise one, it would probably be very unpopular, given the party’s iron belief that the real problem in our health-care system is the selfish desire of sick people to seek expensive treatments instead of pondering the consequences of their own health-risking behaviors. (You know, like insisting on being poor.)
On top of everything else, many — perhaps most — conservative legal scholars think the whole rationale of O’Connor’s ruling is, to use a technical term, pure bunk. Perhaps that means it would be an easy call for Roberts to decide against it if the Fifth Circuit rejects the challenge and punts the case right on up to SCOTUS. All the legal and political arguments in the world, however, will not protect the chief justice from the insane wrath of “the base” if he saves the hated Obamacare law from extinction a second time. So yeah, I am sure he hopes the Fifth Circuit will save him from that particular nightmare.