Yes, it’s amusing. But it actually highlights an interesting question: What exactly are Republicans going to do about health care, and the Affordable Care Act in particular, after the election is over?
The easy answer is that they’ll try to repeal it again, which Mitch McConnell has said they will do. But the real answer is more complicated, since it involves multiple forces and constraints operating at the same time. And it all may wind up in a dramatic ruling from the Supreme Court, in which Chief Justice John Roberts could once again step in to save the GOP from itself.
You’ve probably heard about the lawsuit in a federal court in Texas, filed by 19 Republican-run states and supported by the Trump administration, that seeks to strike down the entire Affordable Care Act. The suit claims that because the Republican Congress reduced the penalty for not carrying insurance (the “individual mandate”) to $0, the mandate has effectively been eliminated and therefore the entire law, including popular provisions such as the protection for people with preexisting conditions, the expansion of Medicaid, the subsidies to help people afford coverage, and allowing young people to stay on their parents’ insurance up to age 26, must be declared invalid.
As the election approached and Democrats began hammering them on preexisting conditions, Republicans suddenly realized what a liability the lawsuit was. Their reaction was simply to lie about their intentions. This brought us the spectacle of people like Josh Hawley, the attorney general of Missouri and a party to the lawsuit, airing soft-focus ads in his campaign for Senate about how deeply committed he is to protecting those with preexisting conditions when his own lawsuit would strip the ACA’s protections away. Then there’s Martha McSally, another GOP Senate candidate, who claims she’s “leading the fight” to “force insurance companies to cover preexisting conditions” when they’re already forced to do that and she’s fighting to make it so they will no longer be forced to.
You can tell they’re torn. On one hand, they’ve spent all these years arguing that the ACA is a vile abomination, a law so horrific in its statist oppression that it could have been dug out of Joe Stalin’s diaries. On the other hand, Americans really like almost everything the ACA does. So Republicans desperately want to kill it, but just as desperately don’t want the public to know they killed it.
As Stephanie Mencimer of Mother Jones reminds us, the judge in the GOP lawsuit, Reed O’Connor, has been sitting on his ruling for months. And he’s no ordinary judge. Appointed by George W. Bush, he’s such a reliable conservative that Republicans regularly file suits in his district, including this one, specifically so they’ll be assigned to O’Connor and he can rule in their favor:
Tim Jost, a professor emeritus at Washington and Lee University School of Law and an expert on the ACA who is following the litigation, calls O’Connor “an intensely political judge” who indicated strong opinions against the ACA during the September hearing. “Why hasn’t he ruled yet?” asks Jost. “I suspect that he is waiting until the election is over because the last thing Republican candidates need right now is another reminder that they are trying to get rid of preexisting-conditions protections.”
So what will happen once the election is behind us? Here’s how it might go. O’Connor would issue a ruling declaring the entire ACA invalid. There would be an immediate appeal, and given the upheaval that would be caused by such a consequential law being snuffed out, the appeals court would likely stay the ruling until the case could be resolved. Eventually it would be heard by the Supreme Court. And what then?
It’s impossible to know for sure, but I think there’s a strong chance that Roberts would save the law, not because he’s some kind of traitor to conservatism but for two other reasons. First, in his public comments Roberts has made clear his concern for the court’s legitimacy, and he realizes that its legitimacy is undermined when it appears to be nothing more than an arm of one party, striking down any law that party doesn’t like. And that legitimacy has seldom been more threatened than it is right now. Second, Roberts understands when his party has gone off the rails and needs to be protected from its own worst instincts.
Supreme Court watchers will tell you that while Clarence Thomas is the most purely conservative justice on the court, Samuel Alito is the most partisan (at least until Brett Kavanaugh took his seat). But make no mistake: Roberts is a partisan, too, just in a different way. Instead of asking “What does the Republican Party want from this case?” the question he seems to ask is more like, “What’s in the long-term interests of the Republican Party?,” which is a very different question.
Roberts twice ruled against Republican lawsuits seeking to destroy the ACA, in 2012 and then again in 2015. Both suits were absurd on their face. But as we all know by now, when it comes to a politically charged question like this one, the actual merits of a case are almost irrelevant; what matters is the outcome the justices want to reach.
While many conservatives cried that he was a traitor for siding with the liberals in those rulings (he was joined by Anthony Kennedy in the latter), I think he was playing a longer game. Roberts may have seen nothing but trouble for the GOP and the conservative project if the ACA were struck down by the court. There would be an inevitable backlash, one that would do huge damage to the party and could result in the passage of universal health coverage, even a single-payer program. Better to live with the ACA (and let it be undermined and sabotaged by Republican administrations, as the current one is doing) than risk something that from a Republican perspective would be far worse both politically and substantively.
Just imagine what would happen if the court struck down the ACA. It would be an absolute cataclysm. Tens of millions of people would lose their coverage. Protection for preexisting conditions? Gone. Democrats would decide that there’s no point in advocating anything less than full-on universal coverage, probably in the form of Medicare-for-all, and in the wreckage Republicans made of the health-care system, the public would welcome it with open arms.
Roberts is smart enough to understand this. And when he watches the president warn darkly that if Democrats take over they’ll obliterate Obamacare, he probably shakes his head and says, “I guess it’s up to me to bail these bozos out. Again.”
I could be wrong, of course. Maybe Roberts will join with the other four conservatives to finally drive a stake through the ACA’s heart. But I suspect that he understands, even if many of his Republican brethren don’t, that in the long run doing so would be the greatest gift advocates of universal coverage could ever get. So he’ll side with the liberals, not because he’s not a true Republican, but precisely because he is.