Ten years’ war over Obamacare
Signed into law at the beginning of the decade, the Affordable Care Act remains a battleground as the 2010s draw to a close. Despite the landmark reform’s undeniable success in reducing the shamefully swollen ranks of the uninsured, even Democrats remain divided over it. And while it’s survived endless legislative and legal challenges, including not one but two Supreme Court affirmations, reactionary politicians and judges continue to wage war on Obamacare based on increasingly strained theories.
Ruling recently on a lawsuit brought by Republican attorneys general and joined by the Trump administration, the New Orleansbased Fifth Circuit U.S. Court of Appeals declared the ACA’s health insurance mandate unconstitutional and gave a lower court another chance to find the rest of the law invalid. California Attorney General Xavier Becerra, who is leading the defense, has said the ruling “set a time bomb” and could justify expedited Supreme Court review to preclude further uncertainty about a law that millions rely on for medical care.
Becerra has a point, especially given that the high court has already upheld the individual mandate. While the court’s conservatives ruled in 2012 that Congress lacks the authority to order Americans to obtain health insurance, one of them, Chief Justice John Roberts, joined the liberal justices in finding that lawmakers could impose a tax penalty on the uninsured.
The ACA survived another major challenge in 2017, when despite endless threats by Republican lawmakers and President Trump, the GOPcontrolled Congress could not muster enough votes to repeal the increasingly popular law. They consoled themselves by zeroing out the penalty for going without insurance as part of a package of tax cuts.
The latest legal complaint relies on the tortured reasoning that the elimination of the penalty means the mandate is no longer a tax and is therefore unconstitutional under the Supreme Court’s original reasoning. It builds on this shaky foundation to allege that all 900 pages of the law — from Medicaid expansion to preexisting conditions to calorie counts — must likewise be invalidated.
In a ruling that a leading legal opponent of the ACA called “a mockery of the rule of law and basic principles of democracy,” the Texasbased lower court judge, Reed O’Connor, agreed with that dubious proposition without going to the trouble of explaining why none of the law’s sprawling provisions could be separated from the mandate. Rather than admit the absurdity of that conclusion, the appeals court urged O’Connor to fill in a rationale.
Getting to this point has required the courts not only to accept a series of questionable arguments but also to ignore precedents and grant that the plaintiffs could be harmed by — and therefore have legal standing to sue over — a zerodollar tax penalty.
As of 2016, the ACA had reduced the number of Americans without health care coverage by nearly 20 million, or more than 40%. Since then, amid unremitting opposition by President Trump and Republican lawmakers, the number of uninsured has crept back up by more than a million.
Meanwhile, in California, which this year added middleincome premium subsidies and a state tax penalty for lack of insurance, preliminary figures showed new enrollments in ACA plans this month were up 16% over last year. The state’s uninsured rate has fallen to 7.2%, compared with 8.5% nationwide.
The indefatigable and intermittently successful rightwing assault on the ACA should give pause to leftists insisting that the ACA’s problem is that it didn’t go far enough. Democrats at least should be able to agree to defend and build on the law’s achievements.