Democrats’ worries grow as ObamaCare court fight drags on

A federal appeals court ruling on a case threatening ObamaCare is raising the stakes for the health law and the Supreme Court in the 2020 election. 

ObamaCare supporters worry the law could be in jeopardy if President Trump is reelected and gets the opportunity to appoint another Supreme Court justice. 

Most observers in both parties assume the current makeup of the Supreme Court would uphold the Affordable Care Act, given the skepticism over the arguments in the lawsuit challenging the law. But if the fight in the lower courts drags on and Trump is reelected with the chance to replace one of the liberal justices, it would throw the future of ObamaCare into more doubt.

“Whether Trump is reelected may a have a lot do with how the courts rule in this case,” said Nicholas Bagley, a law professor at the University of Michigan. 

At issue is a lawsuit brought by Texas and a group of other Republican-led states, and supported by the Trump administration, arguing that ObamaCare’s mandate to have insurance is unconstitutional, and that therefore the rest of the law should be struck down too. 

The Fifth Circuit Court of Appeals issued a long-awaited ruling last month, stating that the mandate is unconstitutional, but punting the key question of how much of the rest of the law to invalidate back to a lower court to figure out. 

That decision means the case will take more time to be ultimately resolved and likely won’t reach the Supreme Court until after the 2020 election, raising the stakes for the presidential race.

There is still some chance the case will be resolved before the election if the Supreme Court agrees to take it up immediately and on an expedited schedule, as a group of blue states requested on Friday, but that would be a rare move.

Congressional Democrats have seized on the GOP-backed lawsuit to argue vulnerable Republican lawmakers are jeopardizing Americans’ health care, a strategy that paid off in the 2018 midterms when the party won back the House. 

“Republican Senators will have to explain to voters for the next year why it was more important to side with their party leaders and special interest donors in Washington than stand up for their constituents’ health care,” Democratic Senatorial Campaign Committee spokesman Stewart Boss said after last month’s ruling. 

But Democratic presidential candidates, consumed with an intramural fight over Medicare for All, have not focused on the threat to the Affordable Care Act in the same way. Some Democrats hope that changes once there is a nominee who is taking on Trump in the general election. 

A decision invalidating the Affordable Care Act, 10 years after its enactment, would be a massive shock to the health care system and throw into jeopardy health coverage for the roughly 20 million people who gained health insurance from it. 

Congressional Republicans have pledged to move to restore some of the law’s popular protections for people with pre-existing conditions if the lawsuit succeeds, but have not laid out a plan for other key parts of the law, like its expansion of Medicaid and financial assistance to help people afford coverage. 

A wide range of legal experts in both parties say the arguments from the GOP challengers in the lawsuit are far-fetched. The challengers point to Congress, in the 2017 GOP tax law, repealing the financial penalty for violating the mandate to have insurance. They say that with the financial penalty gone, the mandate can no longer be upheld as a tax and must be struck down. 

The next step is where the argument takes a giant leap. The challengers argue that all of the rest of the law should be struck down as well, because it is so intertwined with the mandate. 

But experts point out that Congress’s intent was clearly to keep the rest of the ACA intact, given that Congress chose only to repeal the mandate penalty in the 2017 tax law, while leaving the rest of the ACA untouched. 

Conservative legal experts who had supported previous court challenges to ObamaCare wrote a brief to the court last year arguing that the rest of the ACA should remain standing even if the shell of the mandate is invalidated. 

One of those conservative experts, Jonathan Adler, a law professor at Case Western Reserve University, wrote in an email Friday that he thinks the Supreme Court will uphold the ACA in this case no matter what. 

“I don’t think the case has much chance of success in the Supreme Court but it can cause lots of mischief, by generating legal uncertainty, in the time it takes to get there,” Adler wrote. “I don’t think the replacement of a liberal Justice by a Trump nominee would really change the outcome.”

But those views will do little to dispel the worries of ObamaCare supporters. They note that  two courts have now invalidated either all or part of the law in this case, a conservative district judge in Texas and two GOP-appointees on the Fifth Circuit. 

“You have to hold two thoughts in your head: this lawsuit is unlikely to prevail flatly because the legal arguments are so weak,” Bagley said. But he added that “three different conservative judges have all now concluded the ACA is unconstitutional in large part should give you serious pause.”

Allison Hoffman, a law professor at the University of Pennsylvania, said ACA supporters “should be increasingly worried.”

“This case is so ridiculous,” she added. “The fact that it is still alive today makes me more worried.”