Yesterday, conservative state officials filed their final brief in their lawsuit (Texas v. the United States) alleging that part of the Affordable Care Act (ACA) is unconstitutional, making the whole law invalid. A district court judge could grant their request to suspend the ACA in the coming weeks. This decision would surely be appealed by progressive states that are defending the law. But it deserves attention now for three reasons: its absurdity, its audacity, and its implications for legislation and the Supreme Court justice confirmation vote this year.
Texas v. the United States has been criticized by legal scholars across the political spectrum as “absurd.” Part of this condemnation is related to its premise: that the tax cut bill’s “change to the individual mandate” last winter made it unconstitutional. The litigious states claim that, by lowering the tax for being uninsured to zero last year, Republicans in Congress have somehow taken away the choice to be uninsured. This is despite congressional Republicans’ seeking this change to “restore the freedom to choose” to be uninsured. Neither the logic nor the legal rationale make sense, as an amicus brief from the American Medical Association explains.
Worse yet, these states argue that all of the ACA’s hundreds of provisions are not “severable” from the unconstitutional mandate and should be immediately nullified. Amicus briefs opposing this lawsuit from across the health system describe what such a ruling would mean. Within days, health insurance coverage would be taken away from 12 million in the ACA Medicaid expansion and 9 million in its Health Insurance Marketplaces. Medicare’s so-called donut hole would reopen, and key Medicaid home care programs would shut down. Public health programs supporting immunizations and smoking reduction would end. As economists conclude, “An expansive injunction covering the entirety of the ACA would also cause deep economic damage.”
It sets the precedent for a president, in the words of a former DOJ lawyer, to “effectively pick and choose which laws should remain on the books.”
Seeing this absurdity and raising it, the Trump administration’s Department of Justice (DOJ) announced on June 7 that it would not defend the law. In a “perhaps unprecedented” move, it asserted that the recently enacted tax bill’s mandate policy is unconstitutional. And, rather than this implicating the whole law, DOJ argued that “just” key health insurance rules should be eliminated with the mandate nullification starting on January 1. These include prohibitions on denying coverage (guarantee issue) and charging more (community rating) to applicants based on their health risks. DOJ based this assertion on 2010 and 2012 statements on their relationship to the individual mandate—ignoring real-world, post-implementation evidence and projections that markets will remain viable, albeit with higher premiums and fewer people covered, when the zero-penalty mandate takes effect in 2019. An estimated 133 million Americans have a pre-existing condition that, under the DOJ position, could prevent them from buying affordable insurance on their own.
Potent criticism of this audacious attempt at a judicial repeal of the ACA comes from conservatives. A Federalist post criticized Republicans for either ignoring their constitutional oaths in supporting the mandate change or promoting judicial activism: wanting “a potentially unconstitutional act regarding Obamacare’s individual mandate, in the hopes that the courts would use it to strike down the rest of the law.” Two past opponents of the ACA signed a brief opposing the DOJ and plaintiff’s requests: “Accepting their invitation to rewrite the ACA under the guise of ‘severability’ would usurp Congress’s role….” DOJ’s position on this lawsuit also has implications beyond health policy. A conservative former judge criticized the DOJ for abandoning defense of the constitutionality of a duly enacted law, underscoring that its clients are the people of the United States, not the president. It sets the precedent for a president, in the words of a former DOJ lawyer, to “effectively pick and choose which laws should remain on the books.”
In less legal terms, Senator Lamar Alexander (R-TN) wrote: “The Justice Department argument in the Texas case is as far-fetched as any I’ve ever heard.” Senate majority leader Mitch McConnell (R-KY) responded defensively to the DOJ position, “Everybody I know in the Senate—everybody—is in favor of maintaining coverage for pre-existing conditions.” Senator Susan Collins (R-ME) asked Attorney General Sessions to reverse course and defend such policies. One survey found that 70 percent of people think it very important that pre-existing protections remain law; another finds 66 percent of voters disapprove of DOJ’s position in the lawsuit. This casts doubt on the motivation along with its prospects.
What is the point of this lawsuit? It could be an extreme version of President Trump’s strategy from his inauguration-day executive order: let ObamaCare “implode” to force Democrats to engage on legislation. His prior actions, including the mandate change, have made health coverage more expensive, as his own former secretary of health admitted. Rather than drawing in Democrats, this strategy has galvanized them in defense of the law. This pales, however, in comparison to DOJ’s desired outcome in this lawsuit. Major patient groups warn it “would be catastrophic and have dire consequences for many patients with serious illnesses.” Like using children as a bargaining chip in immigration legislation, stripping protections from people needing health care is more likely to backfire than succeed in bringing Democrats to the table.
It could also be about base politics, not policy. Supportive Republicans may hope this lawsuit inoculates them from the broken promise to repeal and replace the ACA. It reverts to the distilled goal of “pulling out ObamaCare, root and branch.” It serves personal politics as well, part of the wrecking-ball approach the Trump administration has taken to most Obama administration accomplishments.
Like using children as a bargaining chip in immigration legislation, stripping protections from people needing health care is more likely to backfire than succeed in bringing Democrats to the table.
Regardless of its merits or motives, the lawsuit has implications for Congress this year. It dims if not extinguishes the hope for short-term bipartisan legislation to shore up insurance markets. President Trump supported DOJ in abandoning its duty to pursue repeal through the judicial branch of government—a pursuit which failed in the Republican-controlled executive and congressional branches. His unvarnished antipathy, on full display here, makes it extremely unlikely he would sign any short-term stabilization bill that does not “gut” the law. This intransigence will make the affordability of health care a top issue for challengers in the 2020 presidential election.
But, given this lawsuit, the Senate vote to confirm a Supreme Court nominee may be a vote on the future of the ACA. The Texas case could make it to the Supreme Court, potentially as early as 2020. Despite its infirmities, its outcome is uncertain especially with another conservative justice and Trump’s DOJ’s failure to defend the law. Indeed, some conservatives claim, given Chief Justice Roberts’ past decision, that it is now “game over” for the ACA.
As such, this case and the decision by this one judge in Texas have disproportionately large implications for the health policy for the nation.