Monday, November 9, 2020

The Supreme Court Will Not Wreck Obamacare

This is an update of an article originally posted in September.

With the Supreme Court due to hear arguments this week on a case brought by a number of Republican state attorneys general that could throw out the entire health care law, and with conservatives now having a 6-3 majority on the Supreme Court, there is great concern among ACA/Obamacare supporters that this could well mean the end of the health care law.

The Obamacare case currently before the court deals with the 2017 repeal of the law's tax penalty enforcing the 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 After the mandate's tax penalty was repealed in 2017, a number of Republican state attorneys general sued, arguing that since the mandate was no longer tied to a specific tax penalty, it had lost its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 the Affordable Care Act/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 the court brief the current challenge is, "unmoored from law or contemporary doctrine."
  • Those now arguing that the Court is almost automatically 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's tax penalty 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. And, the individual health insurance market itself has been chugging along in no worse condition since the tax penalty, and effectively the mandate, was repealed back in 2017 as part of the Republican tax bill.
  • 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's tax penalty undercuts the individual health insurance coverage expansion when the past three years of actual experience shows that no such thing has happened.

During the recent election campaign many Democrats wanted to paint that picture if for no other reason that it fit an effective election season argument, that Republicans wanted to take away your preexisting condition protections, your insurance subsidies, and your Medicaid expansion.

And, since Republicans have brought this suit and the Trump 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 in the first place?

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 then just as abysmally failing to come up with a new replacement proposal since then.

Luckily, the Supreme Court is staffed by adults who will save Obamacare, and the Republicans from themselves.

We should expect a Supreme Court ruling on this case late in the spring of 2021.

Update:

After hearing the Court's oral arguments this morning (November 10th), I can double down on my prediction the Court will not wreck Obamacare. 

If the conservative justices don't buy the plaintiff arguments, their attempts to destroy Obamacare will fail. Listening to the arguments, most of the conservatives were clear that whatever the Court does with what remains of the individual mandate the rest of the law should stand. 

The best comment came from one of the most conservative justices, Samuel Alito:

“In the first case [NFIB vs Sebelius, 2012], there was a strong reason to believe the individual mandate was … essential to keep the plane flying. Now the part has been taken out and the plane has not crashed,” Alito said. “How would we explain why the individual mandate in its present form is essential to the operation of the act?” 

Game, set, match. The Supreme Court will not wreck Obamacare! 

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