The GOP’s ObamaCare Self-Sabotage

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A week after Election Day, the Supreme Court is set to hear oral arguments in another challenge to ObamaCare. The political timing couldn’t be better for Democrats who are using it to claim that Amy Coney Barrett has been nominated to overturn that law.

President Trump is at the Supreme Court trying to “strip away the peace of mind from more than 100 million people with pre-existing conditions,” Joe Biden said last Sunday. If Republicans confirm a nominee, he warned on Wednesday “women’s rights as it relates to everything for medical health care, is going to be gone. Nancy Pelosi claimed that the President is rushing a confirmation vote “because Nov. 10 is when the arguments begin on the Affordable Care Act.”

Democrats surely don’t believe their own fear-mongering, and what they say about Judge Barrett is false. But Republican state Attorneys General and the Trump Administration have walked into this attack by pushing a dubious lawsuit to overturn ObamaCare that has almost no chance of succeeding.

As a refresher, Chief Justice John Roberts in 2012 joined the Court’s four liberals in upholding ObamaCare’s individual mandate under Congress’s taxing power. Since individuals without health coverage didn’t face criminal penalties, he reasoned, they supposedly had a “lawful choice” to pay a “tax” or buy insurance.

Republican AGs led by Texas’s Ken Paxton decided to hoist the Chief on his own logic after the GOP Congress zeroed out the mandate penalty in the 2017 tax reform. The GOP used the savings that the Congressional Budget Office projected from fewer people enrolling in Medicaid and subsidized exchange plans to offset supposed revenue losses of tax reform.

If the “tax” is zero, Republican AGs argue, then the mandate becomes an unconstitutional command under the Commerce Clause and the entire law must fall because other provisions are inextricably linked. They point to the dissent by four Justices in the 2012 Obama case that said the mandate could not be severed from the rest of the law.

But the Republican Congress in 2017 effectively severed the mandate by surgically eliminating the penalty. GOP Senators at the time vowed they were not “chang[ing] anything” in the ACA “except one thing” and that nothing in the tax reform “impacts Obamacare policies like coverage for preexisting conditions.” Congress’s legislative intent matters.

“Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute,” Justice Brett Kavanaugh wrote in a ruling this July that severed a provision from a law restricting robocalls. He was joined by the Chief Justice and Justice Samuel Alito.

As the Chief explained in his Seila Law v. CFPB opinion, “‘Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact,’” adding that the “‘traditional’ rule is that ‘the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted.’”

Justices Kavanaugh and Alito joined the Chief in striking down the Consumer Financial Protection Bureau’s for-cause removal provision while upholding the law. So it’s unlikely they will vote to overturn all of ObamaCare, especially since the economic reliance interests have also grown considerably since 2012.

Most of the law had not taken effect by 2012, but now its insurance regulations and Medicaid expansion are entrenched. The Justices, including Judge Barrett, would most likely strike down but sever the mandate. Short of that, the Court could dismiss the case because states don’t appear to have a concrete injury from the zeroed-out penalty.

In another act of self-sabotage, the Justice Department Solicitor General is backing the Republican AGs against Democratic states that have intervened in the case. Look forward to ads warning that if Americans like their health care, sorry, Republicans won’t let them keep it. We were against ObamaCare from the start and lambasted the Chief’s 2012 ruling. But this ObamaCare case will hurt the GOP politically while accomplishing little legally.

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