That suit is a kind of legal version of Donald Trump’s 2016 presidential candidacy: Everyone realizes it’s both ludicrous and terrifying, but somehow it keeps chugging toward a catastrophic victory.
On Tuesday, a three-judge federal appeals court panel heard oral arguments in the case, and legal observers came away in that shocked/not shocked state. The lawsuit is acknowledged by both Republicans and Democrats to be so unbelievably stupid in its arguments that only the most buffoonishly partisan judge could take it seriously. The entire Republican Party, having created, endorsed and promoted the lawsuit, now seems increasingly worried that it might actually succeed.
And apparently two out the three judges on the appeals court panel are ready to give it a thumbs-up.
Briefly, the Republican argument is that since the Supreme Court upheld the ACA’s individual insurance mandate as a tax, and since the GOP Congress later reduced that tax to zero, effectively making it moot, then the entire law must be struck down as unconstitutional.
As The Post reports, in oral arguments, “two members of a three-judge panel of the U.S. Court of Appeals for the 5th Circuit grilled lawyers representing Democratic-led states and the U.S. House to explain why the Affordable Care Act remains valid.”
If this suit succeeds, it would be the most profound upheaval in the history of the American health-care system, with 20 million people likely to lose health coverage, somewhere between 50 million and 130 million losing protections for preexisting conditions, mass closings of hospitals deprived of revenue, chaos as the entire regulatory structure of the system is swept away in one fell swoop, and other effects we can’t even begin to imagine. It would be a cataclysm.
Now here’s what will really drive you mad: Republicans are trying to convince you that they are the ones who are ready to protect you from the effects of their lawsuit.
“I think the important thing for the public to know is there is nobody in the Senate not in favor of covering preexisting conditions,” said Senate Majority Leader Mitch McConnell (R-Ky.). “And if it were, under any of these scenarios, to go away, we would act quickly on a bipartisan basis to restore it.”
Or, in President Trump’s words, “We will always protect patients with preexisting conditions, very importantly.”
Those are obvious, naked, preposterous lies. It’s like me holding you at gunpoint, then shooting you in the leg, then telling you that I am 100 percent committed to getting you to the hospital so you can get the treatment I wanted for you all along, because I have such a deep commitment to the health of your leg. So you can put your faith in me.
Let’s go over the relevant history, just so we’re clear:
- Before the Affordable Care Act, insurers could deny anyone coverage or charge them exorbitant premiums if they had a preexisting condition. The ACA outlaws that practice, creating the protections for the first time. Every Republican in both the Senate and the House votes no.
- Republicans spend the Obama years filing lawsuits to get the entire law struck down and holding congressional votes to repeal it, which if successful would eliminate protections for preexisting conditions.
- Republicans take control of the entire federal government in 2017 and realize they had promised repeal but hadn’t bothered to come up with a replacement. They hastily assemble a bill, including ending protections for preexisting conditions. The overall effort fails when Sen. John McCain (R-Ariz.) opposes it at the last minute.
- Attorneys general and governors from 20 Republican-led states file a lawsuit to strike down the ACA. One attorney general who spearheaded it, Josh Hawley of Missouri, runs ads in his successful Senate bid touting his commitment to preexisting conditions protections, the very ones he was attempting to destroy.
- Even conservative legal scholars who opposed the ACA argue that the lawsuit is ridiculous.
- The lawsuit is filed in Texas so that it will be heard by U.S. District Judge Reed O’Connor, an unusually partisan Republican. He rules that the whole ACA must be wiped out, thereby eliminating those protections.
- The Trump administration signs on in support of the lawsuit, asking the appeals court to strike down the ACA and its protections for preexisting conditions.
So what we have here is the culmination of a decade-long Republican effort to eliminate protections for preexisting conditions, a Republican lawsuit that would eliminate protections for preexisting conditions, supported by officials in nearly every red state and by the Trump administration, validated by one Republican-appointed district court judge and likely to be rubber-stamped by two Republican-appointed appeals court judges.
Yet Republicans are still trying to convince us that they’re the ones who want to protect those with preexisting conditions.
And you know what else is madness? The best-case outcome is that only four Supreme Court justices vote to strike down the entire ACA and create that health-care cataclysm based on this idiotic lawsuit, while Chief Justice John G. Roberts Jr. decides once again to save the Republican Party from itself by siding with the liberals on the court.
That’s what we have to pin our hopes on.