On Thursday, the Trump administration officially joined a push led by Republican-governed states to have the Supreme Court invalidate Obamacare. It wasn’t a surprise, given its prior position and the now-decade-long Republican push to repeal the Affordable Care Act. But the timing is amazingly self-destructive given the coronavirus pandemic and the threat it poses to the health — and via the economic collapse, the health-care coverage — of millions of Americans.
Solicitor General Noel Francisco filed a brief late on Thursday night urging the Supreme Court to uphold conservative lower court actions that would kill Obamacare on the grounds that revocation of the individual mandate by Congress in 2017 unraveled the whole law. The New York Times briefly explains the situation:
The Trump administration asked the Supreme Court late Thursday to overturn the Affordable Care Act — a move that, if successful, would bring a permanent end to the health insurance program popularly known as Obamacare and wipe out coverage for as many as 23 million Americans.
In an 82-page brief submitted an hour before a midnight deadline, the administration joined Republican officials in Texas and 17 other states in arguing that in 2017, Congress, then controlled by Republicans, had rendered the law unconstitutional when it zeroed out the tax penalty for not buying insurance — the so-called individual mandate.
The Supreme Court is reportedly already planning oral arguments on this case for the fall, likely before the November elections, making it excellent fodder for Democratic claims that Trump and the GOP are determined to strip Americans of health-care coverage. In fact, congressional Democrats and several Democratic-governed states tried unsuccessfully in January to expedite Supreme Court consideration of the case so that an actual decision would precede the elections. All that activity, of course, was prior to the coronavirus pandemic breakout, which has threatened health-care coverage for the many millions of people who are losing their jobs, and made health care a top-tier issue for nearly all voters.
While the administration’s legal brief was a predictable development, it’s also a nicely timed gift for Democrats, as Politico notes:
Trump’s new legal brief offers fresh ammunition to Democrats and their presumptive presidential nominee Joe Biden, who believe their advantage on health care will help the party retake the White House and possibly the Senate this fall. On Wednesday, House Speaker Nancy Pelosi announced plans to vote on legislation building on the Affordable Care Act, timing the bill to draw a contrast with Trump’s legal attack on the law during the coronavirus emergency.
Needless to say, the administration and Republicans generally have never been able to settle on a replacement for Obamacare’s combination of subsidized private health insurance and expanded Medicaid eligibility. So were the Supreme Court to rule in their favor in this case, they might be the proverbial dogs that caught the bus.
The Republican legal drive appears designed to use the 2017 repeal of tax penalties associated with the individual mandate to undermine the Supreme Court’s 2012 decision to uphold Obamacare’s constitutionality, depending on a key argument from Chief Justice John Roberts, as CNN explained when the current suit was in the lower courts:
[Roberts’s] 2012 rationale for upholding the ACA’s individual insurance mandate was tied to Congress’ taxing power. Texas and other Republican-led states, backed by the Trump administration, contend that when Congress zeroed out the tax penalty in 2017 for people who failed to obtain insurance, it eviscerated its constitutional grounds.
“The entire basis,” for the 2012 decision, Texas solicitor general Kyle Hawkins argued Tuesday, “is now off the table.” Without the linchpin of the individual insurance mandate, he said, the entire law must fall.
So the idea is to put Roberts on the spot and recruit him for the holy cause of killing Obamacare. But the argument cuts against a significant body of evidence that Congress, in enacting the ACA, intended it to function with or without a tax penalty.
In any event, by the time SCOTUS decides this case we may have a Democratic White House and Congress in a position to fix any holes punched in the Obamacare system by the courts — or perhaps to improve on it, as Joe Biden has proposed, through such reforms as the enactment of a “public option” for insurance when private policies are unavailable or inadequate. If Trump is reelected and Republicans hang onto the Senate, we’ll likely remain in the purgatory of health-care policy in which the GOP keeps trying to undermine Obamacare and Medicaid but has no alternative plan and isn’t in the position to enact one anyway. In that scenario, the Court’s decision could be momentous.