This fall, in the heat of the election season, the Supreme Court will hear arguments in a truly reprehensible lawsuit, brought by GOP states and supported by Trump, that seeks to invalidate the entire Affordable Care Act. Even some Republicans have privately warned that GOP support for this lawsuit is politically insane.
Now all 47 Senate Democrats are submitting an amicus brief in the case, thus putting the entire Senate Democratic caucus officially on record against the lawsuit. That’s not a surprising position for Democrats, but it shows how unified the party is — from its most conservative to its most progressive senators — behind defending the law.
And in addition to being correct on the legal merits, this shows that Democrats hope to drive home how immense the stakes have grown in this fall’s elections amid the pandemic, and that drawing a sharp contrast over the ACA is central to that.
After Trump and Republicans suffered a large wipeout in the 2018 elections in part due to the public backlash against their effort to roll back the ACA, they have embraced an even more quixotic effort to do the same. This, even though its protections are even more vital amid a public health emergency that is far worse than it otherwise had to be, due to Trump’s own incompetence and depravity.
A laughable lawsuit
The lawsuit has been widely panned by legal observers, including those who opposed the ACA. Its argument is this: After the GOP-controlled Congress in 2017 wiped out the ACA’s individual mandate tax penalty, the entire ACA became unconstitutional, because it still commands people to have insurance but without giving them the choice of paying the tax instead, making it more coercive.
This ridiculous argument falls apart on multiple levels. As Nicholas Bagley explains, by ending the mandate, Congress actually removed the coercive mechanism, thus showing its intent to do the opposite of what challengers claim. And even if the courts do declare the now-defunct mandate unconstitutional, precedent dictates “severing” it from the rest of the law, rather than declaring the entire law invalid.
Similarly, the new brief from Senate Democrats notes that the lawsuit’s argument requires ignoring “what Congress actually did,” i.e., end the mandate’s coercive element. And it points out that whatever the validity of the mandate, Congress has shown its intent to keep in place the rest of the law — the Medicaid expansion, the subsidies for individual insurance, the protections for preexisting conditions.
After all, Congress failed to repeal all of that — even under full GOP control — amid a backlash against the chaos in our health system and explosion in the ranks of the uninsured that repeal would have unleashed.
Striking down the law now, the Senate Democrats’ brief argues, would “violate the separation of powers, and needlessly upend a stable health care system upon which tens of millions of Americans rely.”
Now, because of the pandemic that continues to rampage, the chaos that striking down the ACA would unleash is far worse. Yet Trump continues to embrace the lawsuit, declaring recently: “We want to terminate health care under Obamacare.”
A humanitarian disaster
The humanitarian consequences of this position are terrible to contemplate. As the country slides into the worst economic calamity in nearly a century, the ACA will become a safety net for millions and millions of newly unemployed people.
Indeed, a new study from the Kaiser Family Foundation finds that as many as 12 million people who lose jobs and insurance could be eligible for the ACA’s Medicaid expansion, and another 8 million could be eligible for subsidized coverage via the ACA’s exchanges.
In response, Democrats have ramped up the criticism. Joe Biden has blasted Trump for his continued quest to destroy the ACA, and former advisers to Barack Obama have urged the party to keep it up:
In the middle of a pandemic, Donald Trump and the Republican Party are running on a platform of forcing people back to work in unsafe conditions and taking away their health insurance.— Jon Favreau (@jonfavs) May 6, 2020
The fact that Senate Democrats have submitted this new brief shows that they will continue pounding this contrast in coming weeks and months.
What’s striking is that Trump has not seized on the pandemic as an opening to backtrack. Indeed, none other than Attorney General William P. Barr, one of Trump’s most devoted loyalists, has urged precisely this, recently trying to get him to back off his full support for the lawsuit, on the grounds that “succeeding” here amid a pandemic would unleash even worse havoc.
But Trump has now apparently decided that attacking Obama is his ticket to reelection, faulting him over absurd conspiracy theories alleging criminal conduct, and dementedly tweeting silly videos about him, even as Trump is now presiding over the implosion of the economy he mostly inherited from his predecessor.
So this will probably mean Trump will continue trying to destroy Obama’s signature domestic accomplishment as well.
Yet as one member of Trump’s party bluntly told CNN:
“Republicans can’t afford to litigate health care for the second election in a row,” said a senior Republican strategist. “We saw how this turned out in 2018 and we didn’t have a global pandemic and economic depression to go along with it.”
That’s very well put, isn’t it?
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