After Court Ruling, Crusade Against Obamacare Becomes Unshakable Liability for GOP

December 16, 2018

By David G. Savage and David Willman

WASHINGTON — Dismantling Obamacare has been a top GOP priority for eight years, but a fresh court victory that resurrects the prospect of wiping the law off the books is fast becoming a political albatross for Republicans.

President Donald Trump cheered the federal court ruling in Texas that declares the Affordable Care Act unconstitutional and jeopardizes medical coverage for tens of millions of Americans, but other Republicans hedged. Many tried to blame Democrats for the anxiety the decision has spread among voters.

Even the Trump administration’s head of the Centers for Medicare and Medicaid Services rushed to assure Americans that the court ruling does not change anything immediately, and those in need of insurance can still enroll in Obamacare.

The enrollment period ends Saturday in much of the country, but in California it goes through January.

Legal scholars are deeply skeptical that the legal victory by Republican governors and attorneys general from 20 states will stick. The ruling by Fort Worth-based U.S. District Judge Reed O’Connor that Obamacare is unconstitutional runs counter to established precedent and takes some bold leaps of logic.

Still, health care groups warned that the ruling puts in immediate peril coverage for at least 20 million people — and also threatens the guarantee of available coverage for 133 million Americans with pre-existing conditions. The ruling unleashed consumer worries at a crucial moment in the enrollment process, and after public opinion had long since shifted against the Republican anti-Obamacare crusade.

Democrats, fresh off a midterm election in which House Republicans were pummeled amid voter worries about their health care agenda, framed the ruling as a consequence of the GOP crusade.

“Republicans are fully responsible for this cruel decision and for the fear they have struck into millions of families across America who are now in danger of losing their health coverage,” said a statement from Nancy Pelosi, who will take over as House speaker in January. She said the ruling “exposes the monstrous endgame of Republicans’ all-out assault on people with pre-existing conditions.”

Even some of Obamacare’s fiercest opponents expressed concern about the fallout. Kansas Attorney General Derek Schmidt, a Republican, warned that the decision could “inflame emotions and test civility because of the passions surrounding health care policy in our country.” He called on Congress “finally to work together to fix the constitutional defects of the health law while preserving its popular and beneficial provisions.”

Democrats say the program would be functioning fine but for the GOP constantly working to dismantle it. The Texas decision will likely intensify the push within the Democratic Party for a single-payer, “Medicare-for-All” government health care system that proponents argue would be less vulnerable to unfriendly court rulings and executive orders by governors and presidents.

It will also likely heighten tensions within the GOP, where some see the party’s continued efforts to unravel the health care law as a political loser. Yet many party leaders, led by Trump, are undeterred.

“Great news for America!” the president wrote Friday on Twitter about the Texas ruling.

The victory Trump declared over Obamacare might be short lived.

Several legal scholars find fault with O’Connor’s argument that the Affordable Care Act was effectively nullified by the tax cuts Congress passed in 2017.

“The decision simply flies in the face of normal legal reasoning,” said Sara Rosenbaum, a professor of health law at George Washington University who helped draft related legislation while a White House aide to President Bill Clinton.

O’Connor, who was appointed by Republican President George W. Bush, seized on a section in the recent tax cut law that repealed a penalty Obamacare created for people who do not buy health insurance. The judge said the entire 900-page law became invalid after that penalty, known as the individual mandate, disappeared. The health care law, O’Connor wrote, was intended by the Congress that passed it in 2010 to stand as a whole, and it no longer could.

The judge called the mandate an “essential part” and a “key component” of the Affordable Care Act. “The Court finds the individual mandate is ‘essential to’ and inseverable from the other provisions of the Affordable Care Act,” he wrote. Without it, he ruled, the law can’t stand legally.

“This is a bizarre take,” said Case Western Law Professor Jonathan Adler, a critic of Obamacare who supported earlier legal challenges to the law. He said the decision is particularly bewildering considering that Congress actually moved in 2017 to repeal Obamacare, but failed to muster the votes.

The Texas decision also follows two rulings by the Supreme Court upholding the health care law. But O’Connor’s ruling largely overlooks the majority opinions written by Chief Justice John Roberts and instead relies heavily on a 2012 dissent from four other justices who would have struck down the entire law.

“It’s just such an outrageous opinion,” said Timothy S. Jost, an emeritus professor at Washington and Lee University who has written extensively on the legal and political aspects of the Affordable Care Act. “He just twists and distorts what Congress has done. It almost certainly will be reversed.”

Jost and Rosenbaum said in interviews Saturday that it’s unlikely the case will advance to the Supreme Court. They expect the Fifth U.S. Circuit Court of Appeals will step in to keep the Affordable Care Act intact before it gets that far.

“Nobody is anticipating that tomorrow, people are going to lose their coverage, that the insurance reforms go away and that the insurance industry’s contracts of coverage meeting the Affordable Care Act’s requirements are canceled,” Rosenbaum said.

Nonetheless, O’Connor’s ruling — if left to stand — would have far-reaching consequences. And it was not clear how quickly the ruling, which the Trump administration has no plans to contest, could be challenged by Democratic states and medical groups. It is also possible that O’Connor might try to keep control of the case for weeks or months longer by requesting additional legal briefs.

Several states, led by California, are moving swiftly to try to overturn O’Connor’s ruling. “The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court,” California Attorney General Xavier Becerra said in a statement. He said O’Connor’s “misguided ruling will not deter us.”

The coalition fighting the ruling now also includes newly elected attorneys general from states that were previously involved in the effort to unravel Obamacare.

California could try to persuade the judge to “certify the case” or take some other action that would open it to prompt appellate review, according to Nicholas Bagley, a University of Michigan professor who specializes in health law. Bagley, posting on Twitter, said that O’Connor should allow the case to proceed because “the legal issues are clear and uncertainty about the ACA’s future shouldn’t be left to fester.”

“You’ve got 130 million people with pre-existing conditions who right now have the guaranteed protection,” Rosenbaum said. “This is what the (political) battle was all about in 2010. It has remained the North Star. … We cannot live in a country that relies on a commercial insurance market but, at the same time, closes that market to nearly half the population.”


Times staff writer Jennifer Haberkorn contributed to this report.


©2018 Los Angeles Times

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