Let’s cut to the chase: The Affordable Care Act still exists and, as things now stand, will continue to exist until the Supreme Court says something one way or the other about this rancidly political decision by this ideological hatchet man of a judge. The question before us right now is really what the Supreme Court will do. So let’s answer it.
First, before the decision gets to the Supreme Court, it will be reviewed by the full Fifth Circuit, in New Orleans. Let’s assume for now that the Fifth Circuit, being full of Texas, Louisiana, and Mississippi conservatives, upholds last Friday’s decision. It has 10 judges appointed by Republican presidents (including four by Donald Trump) and just five appointed by Democrats. Presumably, the pro-Obamacare litigants will appeal it up to the Supremes, who would seem to have three basic options.
One, they can decide not to hear it and let the Fifth Circuit’s decision stand. Two, they can uphold the Obamacare repeal. Three, they can overturn the Fifth Circuit and save Obamacare.
For now, I bet—and obviously, I hope—that the court will choose option three. John Roberts, I think, will join the four liberals in striking down this decision. The legal basis is simple and has to do with the judge not acknowledging Congress’ intent in treating separate sections of the law separately (“severability,” in the parlance).
On the law, this decision should be overturned 9-0. If you missed the New York Times op-ed Saturday by Jonathan Adler and Abbe Gluck, go read it. It’s unsparing. Adler and Gluck have both been involved in ACA litigation—Adler against, and Gluck for. You’d think given that, they couldn’t agree on something like this, but they do. They explain clearly why this decision is lawless, and they leave this hack judge’s entrails on the floor.
So yeah, it should be 9-0. But it probably won’t be. At least three justices—Samuel Alito, Clarence Thomas, and Neil Gorsuch—have rarely shown any evidence of being anything other than Republican Party operatives. Brett Kavanaugh we don’t know much about yet. Adler and Gluck note that his writings would suggest that he should reject this judge’s reasoning. But we’ve all seen that movie before, haven’t we?
Which brings us to Roberts. He’s shown awareness in the past (indeed in the first Obamacare case) about the court’s standing and the real-world ramifications of its decisions. Every once in a great while, he even seems to acknowledge that there is such a thing as the general welfare, which conservatives of course despise.
And even if he doesn’t care about millions of people with cancer, he cares about his court’s reputation, which will be destroyed if a majority follows this judge’s reasoning and produces an obvious political decision. Destroyed. Right now it’s polling about 50-40, approve over disapprove. I have no doubt those numbers would flip and stay flipped for a long time. Roberts cares about this.
And it’s right for a justice to care about it. They’re not God on Mt. Sinai. They make decisions that affect lives, that speed or impede justice, and they should care. I wish they cared more, so they wouldn’t come up with out-to-lunch rulings like “racism is basically gone from electoral politics so we don’t need a Voting Rights Act anymore” (no, they haven’t done away with the whole act yet, but it’s almost surely coming).
Indeed, the mention of the VRA reminds me that I could be dead wrong in my optimism. Maybe Roberts won’t care. Maybe he’ll just see it as another instance of calling balls and strikes. To uphold this decision would be making a strike out of a pitch that landed in the fifth row, but who knows?
And of course, I’m assuming all four of today’s liberals are still around. What if, to put it gently, fate has other plans?
So maybe the court upholds this judge and repeals Obamacare on this flimsy ground. What then? Obviously, I hope this doesn’t happen. But I confess that the little devil on my other shoulder would love to see what happens to these bastards if they do this. They’d pay for this for 20 years.
They will not come up with something better. There is no something better, at least in the terms they discuss. There is only worse and meaner, and they already started down that road with last year’s tax bill, which eliminated the penalty the law imposed on people who didn’t go out and buy health coverage.
They have no plan for insuring the uninsured. They don’t want to insure the uninsured. Oh, maybe, if you’re basically healthy and reasonably well-off (which makes you statistically more likely to be white, which is just a coincidence, honestly!). But if people are sick and poor, forget it. Republicans don’t want to insure those people. They think those people are moochers, as Mitt Romney famously said when he thought no one was recording him. If they die, they die. Reduce the surplus population, as one famous Republican once put it during a long-ago Christmastime.
I’ve never seen more sickening hypocrisy in 30 years of writing about these people than what we witnessed this election season, with Republican candidates running around swearing their devotion to people with preexisting conditions even though they were seeking to join a Congress that’s voted to repeal Obamacare 70 times and will keep doing so if and when Republicans have their way; even though some candidates, notably Missouri’s Josh Hawley, were parties to the very lawsuit that was upheld last Friday.
Happily, most voters didn’t buy it, although Hawley was elected by a depressingly large margin (Missourians, when he votes to repeal Obamacare, will you figure out that he was lying?). And if that lawsuit succeeds, these people have no idea of the kind of rage it will unleash. No idea.
And they’ll be laying the groundwork for a massive blowback. I haven’t supported Medicare for All, just on practical grounds, but if they do this, they’ll pave the way to Medicare for All within a few years, because they’ll convert me and millions of others into adherents.
For years now, Republicans have been able to hide to some extent behind the law’s complexity. Most people don’t really understand why it’s a lie when a Republican says he or she supports covering people with preexisting conditions (because they oppose the specific steps that have to be taken to provide such coverage). But they’re catching on.
And if this decision stands, people will know. They’ll know that the Republican Party blew up the health care system. No party has ever done anything like this in our history. Imagine the Republicans of the 1950s taking away Social Security, or the Republicans of the 1920s repealing child labor laws, or the Democrats of the 1880s (yes, it would have been Democrats then) finding some sneaky way to renege on black people’s freedom from servitude.
All of those things are unthinkable. But with today’s GOP, nothing is unthinkable. John Roberts, we’re watching you.