Now that it appears certain that the Republicans will approve a new Supreme Court justice in the coming weeks, there is great concern among Obamacare supporters that this could well mean the end of Obamacare.
That concern is being amplified in the hyper-partisan environment in the ramp-up to the election––it makes for good scare tactics.
The Obamacare case currently before the court deals with the 2017 repeal of the law’s individual mandate for people to buy health insurance coverage. In 2012, Chief Justice John Roberts cast the deciding vote in the 5-4 decision upholding Obamacare generally, and the individual mandate specifically, as valid under the Congress’ taxing power. After the mandate repeal in 2017, a number of Republican state attorneys general sued, arguing that since the mandate was no longer tied to a specific tax penalty, it had lost its legal underpinning. They also argued that because the individual mandate was key to a number of the law’s provisions that made it a workable system of insurance, the entire law should fall, including preexisting conditions protections.
This whole legal process is now being driven by one decision by one Texas federal judge that bought the plaintiff’s painfully tenuous arguments in deciding that the entire law is unconstitutional.
While it is certainly possible the Supreme Court could toss all of Obamacare before the end of this term, I see that as highly unlikely for the following reasons:
- I don’t know of any conservative legal scholars that led prior Supreme Court challenges to Obamacare who see the current challenge as credible on the merits. For example, the architect of the last challenge, Jonathan Adler of Case Western University, said in a friend of court brief the current challenge is “unmoored from law or contemporary doctrine.”
- Those now arguing that the Court is capable of wrecking the law appear to believe Republican-appointed justices are purely partisan political animals marching to the Trump political line. That reflects a lack of understanding about the justices and their dedication to the rule of law. According to the Supreme Court Database, from 2000 to 2018, 36% of all decisions were unanimous. Their 7-to-2 or 8-to-1 decisions made up 15 percent of decisions. The 5-to-4 decisions, by comparison, occurred in only 19 percent of cases. And, in the 2019-2020 term, with Gorsuch and Kavanaugh aboard, only 21% of the decisions were 5-3 or 5-4.
- The concerns over the Court wrecking the whole law lie with the dubious notion that if the individual mandate is gone, so should the broader parts of the law such as the Medicaid expansion and the individual insurance subsidies. The Medicaid expansion, for example, has absolutely nothing to do with the individual mandate that was originally placed in the law as a means to support insurance companies’ ability to underwrite individual health insurance policies.
- If the justices decided that the whole law had to go, they would force upwards of 20 million people onto the rolls of the uninsured overnight on the dubious premise that the excising of the individual mandate, which has actually already happened in the 2017 tax bill, undercuts the entirety of the coverage expansion. It is hard to see how one gets from eliminating the individual mandate, that has already been gone for three years, to justifying blowing up coverage for millions in an instant.
But many Democrats now want to paint that picture, if for no other reason that it fits an effective election season argument, that Republicans want to take away your preexisting condition protections, your insurance subsidies, and your Medicaid expansion.
And, since Republicans have brought this suit and the White House has supported it, their actions legitimately lay Republicans wide open to that claim. And, that begs the question of why Republicans would do such a stupid thing.
Ironically, Republicans are now moving to blow up the law in court after abysmally failing to repeal and replace Obamacare in 2017 (in part leading to their 2018 election defeats) and abysmally failing to come up with a new replacement proposal since then.
Luckily, the Supreme Court is staffed by adults and will save Obamacare and the Republicans from themselves.
Robert Laszewski is president, Health Policy and Strategy Associates and blogs at Health Care Policy and Marketplace Review.
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