WASHINGTON – The Trump administration’s latest request that the Supreme Court strike down the Affordable Care Act comes at a perilous time for the president, amid a pandemic and just four months before Election Day.
While the case against the law is led by Texas and won’t be heard until after the election, the Justice Department had to file its brief at the high court by midnight Thursday, and it did so with just hours to spare.
The administration’s argument – that Congress’ elimination in 2017 of the law’s tax penalty for people who do not buy insurance renders the entire law unconstitutional – is a long shot. Five justices who upheld the law in 2012 and again in 2015 remain on the court, led by Chief Justice John Roberts.
What’s more, the court’s rulings the past two weeks in favor of LGBTQ rights and DACA recipients followed outpourings of support for those results from dozens of advocacy groups on both sides of the ideological spectrum. A similarly broad array has urged the court to uphold the law Congress passed and President Barack Obama signed in 2010.
Some Republicans have acknowledged the timing of the Supreme Court battle isn’t ideal as the nation weathers a pandemic and the party looks ahead to November, when it will attempt to fend off Democrats eager to take control of the White House and Senate. Democrats have made health care a central fixture of their platform and credit the issue with helping them take control of the House in 2018.
“Republicans have been slow-footed,” Sen. Mike Braun, R-Ind., said. “We’re now having to defend a lawsuit that wants to get rid of covering preexisting conditions, for instance. I don’t know a Republican that’s not for covering preexisting conditions.”
Sen. Susan Collins, R-Maine, who is facing a tough re-election battle, blasted the Trump administration’s efforts.
“The Administration’s decision to submit this new brief is the wrong policy at the worst possible time as our nation is in the midst of a pandemic,” she said. “The Affordable Care Act remains the law of the land, and it is the Department of Justice’s duty to defend it.”
The latest lawsuit against what came to be known as Obamacare has won victories at two conservative federal courts based in Texas and Louisiana. Like previous legal battles, it pits states led by Republican governors and legislatures against those led by Democrats.
The Justice Department originally sought to strike down only the individual mandate, then joined Texas and 17 other Republican-led states seeking to kill the entire law. Finally, it suggested such a ruling might be applied only in the 18 states challenging it.
An unconstitutional law does not necessarily mean it no longer remains on the books, and the Justice Department goes on to say that “the relief should reach only the enforcement of the ACA provisions that injure the individual plaintiffs.”
What that means remained unclear Friday. But White House deputy press secretary Judd Deere defended the administration’s legal brief, even in light of the ongoing battle against COVID-19.
“A global pandemic does not change what Americans know: Obamacare has been an unlawful failure and further illustrates the need to focus on patient care,” he said. “It limits choice, forces Americans to purchase unaffordable plans, and restricts patients with high-risk preexisting conditions from accessing the doctors and hospitals they need.”
‘Thread a needle’
Jonathan Adler, a conservative law professor at Case Western Reserve University School of Law who filed a brief in the case, called the Justice Department’s position “hopelessly confused.”
“They’re trying to thread a needle between supporting the petitioners but also maintaining a traditional notion about the limits of judicial power,” Adler said.
Some conservative legal analysts have told the court that Texas and other states lack standing to bring the case at all. Others have said the individual mandate to buy insurance can be severed from the broader law, leaving the rest intact.
But the most impactful arguments may be those coming from health care advocacy groups and health insurers who predict massive disruption for millions of consumers and providers if the law is struck down.
“Make no mistake: invalidation of the ACA would wreak havoc on the entire health care system,” America’s Health Insurance Plans, the insurers’ trade group, said in court papers.
“Congress could not have intended that result in 2010, when it enacted one of the most comprehensive and far-reaching pieces of health care legislation in over 50 years,” the group said. “Congress did not intend that result in 2017, when it zeroed out the tax payment for forgoing health coverage without repealing any other ACA provision.”
In January, the justices refused to hear the new case on an expedited basis, eliminating any chance they would decide it during this year’s presidential campaign. It will be scheduled for oral argument no sooner than November and decided in 2021.
The new challenge stems from the $1.5 trillion tax cut passed by the Republican-dominated Congress in 2017, which repealed the health care law’s tax on people who refuse to buy insurance. That tax was intended to prod them into the health care marketplace rather than let them seek emergency care while uninsured.
In December 2018, federal District Judge Reed O’Connor ruled that without the tax, the law could not survive. His ruling, which was put on hold while it was appealed, threatened to wipe out insurance for 20 million people, protection for those with preexisting conditions, subsidies for low-income people, Medicaid expansions in many states, coverage for young adults up to age 26 and more.
The appeals court panel agreed, 2-1, that the individual mandate is unconstitutional “because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power,” Judge Jennifer Walker Elrod wrote for the majority.
Rather than strike down the entire law, as O’Connor did, the panel sent the case back to federal district court for “additional analysis” on whether the individual mandate can be severed from the rest of the statute. In doing so, the panel noted the Trump administration’s changing positions in the case.
Dissenting Judge Carolyn Dineen King called the appeals court ruling “textbook judicial overreach” that “ensures that no end for this litigation is in sight.”
More ACA cases at the high court
Meanwhile, the health care law has come before the Supreme Court twice in recent months for other reasons.
The court ruled in April that Congress cheated health insurance companies by reneging on a $12 billion promise made under the Affordable Care Act.
Because insurers took considerable risks when they agreed to participate in the law’s health care marketplaces, the original 2010 law included limits on the amount of losses they could incur. But when the bill came due to cover some of those losses several years later, the government refused to pay.
Associate Justice Sonia Sotomayor wrote the 8-1 opinion on the basis of “a principle as old as the nation itself: The government should honor its obligations.”
The court is due to rule in the coming weeks on challenges from religious objectors that they should not have to provide free health insurance coverage for contraceptives under rules promulgated after the law was enacted. That argument has been made before the court several times since 2014, when it exempted some privately held companies from the requirement.
Contributing: Christal Hayes and Michael Collins