The Supreme Court on Tuesday denied a motion to fast-track a challenge to the Affordable Care Act so that it could be considered this term.Without comment, the justices turned down a motion by the House and Democratic-led states to expedite review of a decision last month by a panel of the U.S. Court of Appeals for the 5th Circuit. The panel struck down the law’s mandate that individuals buy health insurance but sent back to a lower court the question of whether the rest of the statute can stand without it.A practical effect is that the Affordable Care Act is likely to remain in place through the November elections.
You can hear the sighs of relief all up and down Pennsylvania Avenue.
This suit, brought by a group of Republican states and supported by the Trump administration, holds that since the individual mandate in effect no longer exists — it’s nominally in place, but the penalty for not having insurance has been reduced to $0 — the entire ACA is invalid and must be struck down. It’s an argument that most legal scholars find to be somewhere between stupid and comical, but you never know what the five conservatives on the court are going to do.
And now that they have a majority, striking down progressive legislation is going to be one of their principal projects in the coming years. But not this time. While the court does not reveal which justices approve these kinds of orders, I’d bet Chief Justice John G. Roberts Jr. was involved; as I’ve argued before, Roberts is a committed conservative who nonetheless has an acute sense for when the Republican Party needs to be saved from itself. And if there were ever such a time, this is it.
So why were Democrats urging the court to step in to decide this case? There are multiple reasons. The official one was that they wanted the matter settled as quickly as possible, in the hope that Republicans would lose and the ACA would be on secure ground.
But there is also a political consideration. At the very least, Democrats would have relished Supreme Court arguments in the case, which would have produced lots of news coverage reminding voters that Republicans want to destroy the ACA, kicking tens of millions of people off Medicaid, depriving millions more of subsidies that allow them to afford insurance and snatching away the protections those with preexisting conditions now enjoy.
That would have given the Democratic presidential nominee a terrific way to illustrate the stakes of the election on health care. Now they’ll have to call attention to the issue without the benefit of the urgency the Supreme Court could have provided.
But what if the Supreme Court had taken the case right away and Republicans had won?
I’m sure there are some Democrats who believe that, over the long term, that would have been the best possible outcome. It’s an old Leninist idea (“the worse, the better”) that the more miserable life becomes, the easier it will be to stage a revolution.
The logic goes like this: First, the court strikes down the ACA, and the result is chaos and suffering as the entire health-care system is upended. The news is awash in stories of people losing their insurance or being newly denied coverage for their preexisting conditions, and even dying as a result. Voters then take their vengeance on Trump and the GOP in November, not only delivering a Democratic president and Congress but sending them to Washington with a mandate for immediate and sweeping health-care reform.
With the misery unabated, Democrats pass a bill that reconstitutes the system into something far better than the nightmare we have now, whether it’s some form of single-payer or at least a public option that gets us close to universal coverage.
That particular sequence of events won’t happen now; either way, the case won’t be resolved until after the election. Once again, Republicans have been saved from themselves, and now they can go back to pretending they don’t actually want to make the system even more cruel and dysfunctional than it already is.