Will election winners have to deal with end of Obamacare? | Randy Schultz

Whatever the results of Tuesday’s election, let’s not forget what happens next Tuesday and what’s at stake.

That’s when the U.S. Supreme Court hears arguments in the latest Republican attempt to kill the Affordable Care Act. A ruling next spring against the law would disrupt the health care system with the COVID-19 pandemic likely not over.

For more than a decade, Republicans have obsessed over the Affordable Care Act like Wile E. Coyote trying to catch the Road Runner. They have tried every political and legal trick, yet the law keeps running.

The current challenge started with the 2017 tax bill. Republicans worsened a deficit-busting favor for the rich and corporations by neutering the law’s individual mandate. It assessed a tax penalty on Americans who didn’t have health insurance. The bill zeroed out that penalty.

Now a group of Republican-dominated states – led by Texas and including Florida – argue that because the tax raises nothing, it is invalid. Therefore, the justices should strike down the entire law. The Trump administration supports the lawsuit.

Even conservative legal scholars have mocked the GOP’s case. Jonathan Adler, a law professor at Case Western Reserve who supported an earlier challenge, called this one “implausible.” Yuval Levin of the right-leaning American Enterprise Institute said the lawsuit “doesn’t even merit being called silly. It’s ridiculous.”

Still, the high court has shifted since its two major rulings on the law. In 2012, the justices upheld the law except for the requirement that states expand Medicaid. In 2015, they upheld the use of subsidies in any state to help lower-income people buy coverage.

Justices Samuel Alito and Clarence Thomas remain from that 2015 ruling. They and the late Antonin Scalia formed the minority. Neil Gorsuch succeeded Scalia after Republicans refused to let Barack Obama fill the seat.

Two of the six justices in the majority – Anthony Kennedy and the late Ruth Bader Ginsburg – are gone, succeeded by Trump appointees. Three others remain – Stephen Breyer, Elena Kagan and Sonia Sotomayor. So does Chief Justice John Roberts, who wrote the majority opinions in 2012 and 2015.

In fact, the law has done remarkably well in court. Though the Supreme Court decisions matter most, two earlier lower court rulings were notable.

Each time, a very conservative appeals court judge – Jeffrey Sutton in the Sixth Circuit and Laurence Silberman in the District of Columbia Circuit – wrote majority opinions that upheld the entire law. Silberman is a Reagan appointee. George W. Bush appointed Sutton.

Plaintiffs had argued that the individual mandate overreached by penalizing Americans for inaction – not buying health insurance. Silberman acknowledged that the mandate “is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race. . .The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems.”

The Affordable Care Act was a political attempt at a national solution. With their lawsuit, Republicans want the courts to give them what they haven’t achieved in Congress – the sort of judicial activism they claim to oppose.

Hypocrisy also is at work. The idea for the mandate came from the Heritage Foundation, a right-wing think tank aligned with the Republican Party.

It’s a good idea. Markets don’t work unless everybody participates. Heritage and Republicans didn’t oppose the mandate until a Democratic president embraced it.

If the Supreme Court struck down the law, 21 million people – nearly two million of them in Florida – likely would lose their health care coverage. About 133 million Americans – including COVID-19 survivors – with preexisting conditions could lose coverage or would have to pay much more.

But the damage wouldn’t stop there. Among many other things, the law conditions payments to non-profit hospitals on what they spend to improve community health. Those hospitals would face waves of uninsured patients.

In one episode of the cartoon series, Wile E. Coyote finally catches the Road Runner. It doesn’t go well. He faces the audience and holds a sign, which asks, “What do I do now?”

Democrats have said what they would do. Would Republicans have an answer?

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