The Trump administration has hit on a new tactic for destroying ObamaCare. Abandoning their previous opinion, Department of Justice lawyers said they will no longer defend the law at all in a two-sentence memo to the Fifth Circuit court.
This demonstrates one thing: Republicans and President Trump are coming for your health insurance, and they will trample both law and democracy to get it.
The administration is now agreeing with a December ruling from District Judge Reed O'Connor. As Nicholas Bagley writes, the reasoning was a dog's breakfast of tendentious gobbledygook. Essentially, O'Connor used congressional debates from the 2010 drafting of the law to argue that the 2017 Congress really meant to repeal the entire law when they simply deleted the ObamaCare individual mandate. It couldn't be more obvious that this is a clumsily reverse-engineered argument to achieve by judicial fiat what the party couldn't do through the legislature (recall that the Republican effort to directly repeal ObamaCare did not pass).
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The Trump administration agreeing with O'Connor is a further escalation. The opinion is so nutty that even conservative lawyers have criticized it as nonsensical — and the Trump memo itself doesn't justify the opinion in the slightest, nor explain their change of position. As Bagley writes in another post, it potentially set a precedent where the "sitting administration could pick and choose which laws it wants to defend, and which it wants to throw under the bus. Indeed, the decision not to defend is close cousin to a decision not to enforce the law."
This kind of thing appears to be a key prong of long-term Republican political strategy. First, leverage the enormous pro-GOP bias built into the Senate to hold that chamber. When a Democrat is president, hold as many judicial vacancies open as possible — then when a Republican is president, jam through as many Federalist Society zealots as possible. Once installed, those justices then conduct what amounts to judicial rule-by-decree — cooking up crackpot arguments that all Republican policy is constitutionally required, while all Democratic policy is unconstitutional. Finally, party activists and propaganda organs characterize this strategy as "judicial restraint" and any contrary arguments as "judicial activism," to provide some ideological cover. The contempt for foundational principles of democracy is palpable.
But if upheld by the Supreme Court, this judicial legislation would wreak untold havoc in the American health-care system. Aside from the millions of people who would lose their exchange and Medicaid coverage instantly, ObamaCare structures and regulations have been built (at great effort and cost) into the basic structure of health-care delivery. Simply tearing them out without any replacement would severely damage the employer-based insurance system as well (which is already under terrible strain). The social carnage would be horrific. Tens of thousands of people would die, every year.
Also, this isn't the only attack the Trump administration has proposed on American health care. The latest Trump budget proposed block-granting and capping Medicaid spending, cutting expenditure by $1.5 trillion over 10 years — the same process by which traditional welfare for poor mothers was slowly strangled nearly to death. The budget also proposes $845 billion in cuts to Medicare.
Now, that budget is dead on arrival with Democrats in control of the House of Representatives. But it demonstrates Republican priorities — contrary to Trump's promises as a candidate that he would protect Medicaid and Medicare, as president he would savage America's already-threadbare welfare state.
But this is also a political gift for Democrats. American democracy is not (yet) completely cored out, as we saw in 2018. Indeed, health care polled as the top issue in the 2018 midterms, and Democrats won those voters by a 75-32 margin. It couldn't be clearer that the way to protect (or improve) one's health-care coverage is by voting Republicans out of office. They're simply never going to stop trying to take it away.
