Demonstrators hold signs as Democratic leaders speak with reporters outside the U.S. Capitol in 2018.
Aaron P. Bernstein/Getty Images
On Monday, the Supreme Court agreed to hear Texas v. California, a sweeping challenge to the Affordable Care Act that seeks to obliterate the law in its entirety. Legal assaults on the ACA are not typically good news for Democrats. But here, the political ramifications could not be worse for Donald Trump. His administration will spend the run-up to Election Day asking SCOTUS to strip health insurance from more than 20 million people, quite possibly in the midst of a pandemic.
The latest attack on Obamacare is rooted in the individual mandate, a section of the law that imposed a tax on Americans who declined to purchase health insurance. In 2017, Congress reduced that tax to zero dollars. Texas, joined by a coalition of red states, then decided that, by zeroing out the mandate, Congress had rendered the entire Affordable Care Act unlawful. It argued that, in 2012, the Supreme Court upheld the mandate because it functioned as a tax. Now, Texas claimed, it’s no longer a tax, because it collects no money. As a result, the mandate has become unconstitutional. And because the mandate can’t be lopped off from the rest of the law, the courts have a duty to tear it all down.
This theory is preposterous for two reasons. First, Texas claims that the mandate is now a legal command to buy health insurance which no law-abiding citizen may ignore. But that’s highly doubtful, because there is literally no punishment for those who do ignore the mandate: They have a choice between purchasing insurance and doing nothing. Second, even if the mandate were unconstitutional, Congress obviously decided that it could be severed from the rest of the law in 2017. After all, that’s essentially what Congress did by zeroing out the penalty for uninsured Americans. The notion that courts cannot strike down a toothless mandate without annihilating every other provision of the ACA should’ve been laughed out of court.
But it wasn’t, because Texas brought its case to the courtroom of U.S. District Court Judge Reed O’Connor, one of the most partisan judges on the federal bench today. Moreover, the state found support from Trump’s Department of Justice, which agreed that the mandate had become unconstitutional and argued that O’Connor must strike it down—along with protections of people with preexisting conditions. O’Connor then ruled that the mandate was illegal. But he went even farther than the DOJ had suggested, holding that every component of the ACA must be thrown out: Not just protections for preexisting conditions, but the exchanges, the tax credits, Medicaid expansion, nondiscrimination rules, everything. If upheld, that ruling would instantly take away 20 million Americans’ health insurance.
Attorney General William Barr was so impressed with O’Connor’s decision that he decided to endorse it. In 2019, the Justice Department announced that O’Connor was correct: The full ACA is illegal, and the courts must wipe it out. By a 2–1 vote, a panel for the U.S. Court of Appeals for the 5th Circuit affirmed O’Connor’s conclusion that the mandate is unconstitutional in a blatantly political ruling. But the majority told O’Connor to “employ a finer-toothed comb” to determine which provisions might be salvageable. California, joined by a coalition of blue states, appealed the 5th Circuit’s decision to the Supreme Court, which took the case on Monday. It will probably hear arguments in October 2020, though the court’s scheduling decisions are opaque, and it may wind up holding arguments in November, possibly just after Election Day. (The decision will come out in 2021.)
No matter when, exactly, SCOTUS hears Texas v. California, it has put the Trump administration in a politically disastrous position. Most Americans have favorable views of the ACA, and a huge majority support its most important provisions. In the months before the election, Trump’s Department of Justice will be filing briefs asking the Supreme Court to take away health care from a mind-boggling number of people. It will argue that the Court must obliterate a slew of popular reforms, including a guarantee that children can remain on their parents’ insurance through age 26, and a requirement that plans cover crucial services like maternity care and mental health treatments. It will ask SCOTUS to roll back Medicaid expansion, which has already saved at least 19,000 lives, and halt subsidies for more than 9 million people who buy insurance through exchanges.
Trump and his fellow Republicans often lie about protecting patients with preexisting conditions. It will become more difficult to pass off these lies when the administration is filing briefs at the Supreme Court that urge the justices to abolish protections for pre-existing conditions. In light of research indicating that the ACA has saved thousands of lives, it is no overstatement to say that if the Supreme Court rules for the Trump administration, it will cause thousands of deaths. Notably, neither the president nor his congressional allies have proposed a serious plan to replace the ACA since their “repeal and replace” effort failed in 2017. Trump’s plan is to eliminate the ACA and replace it with nothing.
The political repercussions are clear. Health care was the top issue for voters in the 2018 midterms, and Democrats were able to seize the House of Representatives by making the matter a centerpiece of their campaigns. In 2020, the stakes are even higher. The cost of health care in the United States is already poised to help coronavirus spread across the country: Patients may struggle to afford the proper testing and treatment, making transmission more likely. Nuking Obamacare in the middle of a pandemic would exacerbate the problem, depriving millions of Americans of health insurance just as they need it most. As coronavirus infects more Americans, the Trump administration’s crusade to deprive millions of health care will become even less politically palatable.
Chief Justice John Roberts has previously rejected frivolous attacks on the ACA, and he’ll probably rule against this one, as well. Assuming all four liberal justices remain on the bench for another year or so, SCOTUS will probably throw out this ridiculous case. But in the meantime, it will be a constant reminder to voters that Republicans are intent on throwing the U.S. health care system into chaos.
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