Republicans are still trying to steal your health insurance

Republicans failed to repeal ObamaCare in 2017 by a single vote in the Senate. But they are still trying to drive a stake through its heart in secret — using yet another tendentious legal Calvinball case to try to get the courts to strike it down as unconstitutional.

With a recent decision from the 5th Circuit Court of Appeals, there are some signs that it might actually happen. As the 2020 election campaign picks up, it's worth remembering that the Republican Party is dead set on taking millions of Americans' health insurance away, or failing that, making it as expensive and terrible as possible, by any means they can dream up.

First, the legal background. The suit is Texas vs. United States, filed by a number of right-wing state attorneys general. It is very obviously a backfilled pretext trying to get through judicial activism what the Republican Congress could not pass. Here's how the logic goes. Back in 2012, the Supreme Court ruled that ObamaCare could stand in part by reinterpreting its individual mandate to buy insurance as a tax. Then, in 2017, Congress passed a tax cut for the rich that also got rid of the individual mandate tax — leaving a legal requirement with no teeth.

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

So the suit argues the mandate must be struck down since you can't have a tax that collects no money — and because, when Congress was designing ObamaCare, most agreed that the individual mandate was a key part of the law, the whole thing needs to go. (The Trump administration has also refused to defend the law.)

As Slate's Dahlia Lithwick and Mark Joseph Stern explain, on the legal merits this argument is absolutely preposterous. The suit argues that Congress repealed ObamaCare in secret with the 2017 tax bill despite voting against an explicit repeal that very same year. And when Congress was designing the ACA, they included the individual mandate because all the liberal wonks agreed you needed one to stave off the dreaded cost death spiral within the ObamaCare exchanges. The Supreme Court has previously held that a law can stand with an unconstitutional portion removed so long as it is "fully operative" without it — and not only does it turn out that you don't actually need the individual mandate to keep the exchanges functioning, there are tons of parts of ObamaCare that have nothing to do with the mandate or exchanges at all, like the Medicaid expansion or allowing children to stay on their parents' insurance until age 26.

Like the Halbig v. Burwell case from years ago, this is a "Monty Python-esque exercise in extreme tendentiousness" from bug-eyed Federalist Society crackpots. If it weren't this it would be something else, like maybe arguing ObamaCare is unconstitutional because it enslaves doctors, thus violating the 13th Amendment. The only problem would be the legal team huffing just enough paint thinner so that they could make the argument with a straight face before the bench.

And yet, the notoriously reactionary 5th Circuit basically accepted this argument in a ruling from earlier this month. They ruled that the mandate is unconstitutional, but remanded the question of whether the whole law should therefore be thrown out back to the lower court. There very likely won't be a final decision before the 2020 election — which is almost certainly a political move. The partisan Republican hacks President Trump has been stuffing onto the federal bench obviously don't want to blow up his chances of reelection. If millions of people are going to lose their insurance via conservative judicial rule-by-decree, best not to do it during an election year when your party is the presidential incumbent.

But make no mistake, ObamaCare is still very much on the ballot in 2020. If Trump wins reelection, he will very likely be able to replace Ruth Bader Ginsberg on the Supreme Court, and that will almost certainly spell doom for the law (with this lawsuit or another one). If that happens, something like 20 million people will lose their insurance immediately — as Medicaid is drastically rolled back, the exchanges are shut down, and anybody between 18 and 25 who is still on their parents' coverage is kicked off. Protections for people with preexisting conditions would be removed, and private insurers could once again place annual and lifetime coverage limits on their policies.

The slow-motion collapse of the private health insurance system would accelerate as well, as cost-control policies designed to slow the cancerous cost bloat that is eating the American economy from the inside would be deleted. More broadly, there would be spectacular chaos within the health care system, which was totally overhauled to accommodate ObamaCare changes — and this time there will be no guiding hand from Congress.

So while there is a never-ending parade of war crimes, corruption, and general insanity from the Trump regime to distract us, let's not forget that Republicans are also gunning for your health insurance. If they can't take it away, by God they'll make it as crummy and expensive as possible.