By now, congressional Republicans are largely finished with their fruitless, decade-long quest to repeal and replace Obamacare. It, however, is not finished with them.
Like a zombie, that effort has lurched forward without the buy-in of congressional Republicans—aided, this time, by the branch of government that sits across the street: the U.S. Supreme Court. A group of GOP state attorneys general, backed by President Donald Trump, are pushing a lawsuit that would repeal the Affordable Care Act. With arguments in the case set for the fall, the decision on the fate of the sweeping health-care law could come before January 2021, when either Trump or Joe Biden will be sworn into office.
That’s put the ACA, once again, at the forefront of the political conversation. And with the election looming and the coronavirus pandemic raging, Republican aides and lawmakers have been left to watch it all with a mix of frustration and anxiety—frustration that the administration is pushing ahead with a lawsuit they believe is politically toxic to their party and anxiety that they have no actually plans for what to do if the high court actually does strike down the law.
“It does beg the question of what you just asked—what’s Plan B?” said Sen. Mike Braun (R-IN), a member of the Senate’s health panel, on Thursday. “And I don’t know that there's anything there ready to go.”
Republicans famously could not pass a bill to repeal and replace Obamacare even with unified control of government. Since then, they have thrown out various proposals but none have gained steam. Key members of the party have actually floated measures to shore up the law, not destroy it; privately, many believe it’s here to stay, whether they like it or not.
Asked by The Daily Beast, several GOP lawmakers pointed to some of those specific bills from their colleagues as vehicles that could serve as stopgap measures should the court strike down Obamacare. But none could point to a specific person or persons in their ranks crafting a plan to replace the ACA, should it cease to exist. Spokespeople for two of the lawmakers central to the Senate’s last repeal-and-replace bill, Sens. Lindsey Graham (R-SC) and Bill Cassidy (R-LA), did not respond to requests to comment on the current status of Obamacare replacement legislation.
The level of discussion within the Republican ranks regarding the possibility they may have to replace the ACA soon appears, in fact, to be minimal to nonexistent. Last week, a small delegation of GOP senators traveled to the White House to meet with administration officials for a discussion on several health care-related topics. Obamacare or the lawsuit threatening it did not come up, according to a source familiar with the meeting.
“You’re asking me whether there’s a plan—there are a lot of plans, plural,” said Sen. Rob Portman (R-OH). “I mean, lots of us have ideas.”
Others simply resorted to the president’s go-to line: that Republicans will have something ready to go, at some point. “We’re not going to leave the American people without insurance,” said Sen. John Kennedy (R-LA). “We will replace the Affordable Care Act with something better.”
The latest existential threat to the ACA at the high court comes from 18 states, led by Texas, which argue that the centerpiece of the law—the so-called individual mandate to purchase insurance—is unconstitutional, because the tax penalty for not obtaining insurance was eliminated by the GOP’s 2017 tax law. The states argue that since the individual mandate is inseparable from the rest of the law, the entirety of Obamacare must be struck down.
Privately, Republican lawmakers and aides doubt that Chief Justice John Roberts’ court would actually strike down the ACA. Roberts has upheld the law in key cases before, and his recent siding with liberal justices on decisions about abortion and immigration have some conservatives convinced he wouldn’t overturn it now.
Key Republicans, like Sen. Lamar Alexander (R-TN), chairman of the Senate Health Committee, have also disparaged the merits of the case brought by the GOP attorneys general. “I never thought that was a very good case,” Alexander said recently on CNN. “I don't remember hearing anybody in the United States Senate saying at the time we thought we were repealing Obamacare, we thought we were repealing the penalty on the individual mandate.”
But the suit could be plenty damaging to Republicans, no matter what the high court ultimately decides. Democrats successfully took back the House in 2018 on the strength of backlash to the GOP’s repeal-and-replace effort, and they’d love nothing more than to run on the issue again in 2020. The GOP, likewise, has been anxious to retool their health care messaging on the campaign trail, recognizing Democrats’ political advantage on the issue. The Trump lawsuit effectively scuttles that—and it’s making operatives tear out their hair.
“Nobody wants to have this fight, no one wants to talk about it—this helps no one,” said one party strategist, who spoke on condition of anonymity to discuss the issue candidly. “If we’re talking about health care, we’re losing… It’s a bad issue for us. By continually bringing it up, we highlight a weakness.”
For the Senate Republicans facing competitive re-elections this fall, the ACA lawsuit represents yet another potent obstacle in the minefield of Trump’s Washington, where breaking with the president can be politically lethal but sticking with him on an unpopular stance can be just as harmful.
In a radio interview on Wednesday—days after the Trump administration filed another brief solidifying its support of the states’ lawsuit—Sen. Cory Gardner (R-CO) dinged his Democratic opponent, John Hickenlooper, on health care but didn’t give a straight answer as to whether he backed the ACA lawsuit, despite being asked repeatedly. “What we need to do is find Republicans and Democrats who are willing to find a better solution to the Affordable Care Act,” Gardner told Colorado Public Radio. Gardner is one of the most vulnerable GOP incumbents this fall, standing for re-election in a state that Biden is expected to win comfortably.
Other incumbent Republicans on the ballot this fall, like Sen. David Perdue (R-GA), have decided to wholeheartedly endorse the Trump effort to overturn the ACA. “I support the president in his attempt to do that,” Perdue told a local TV station last week, adding “we know what a debacle the Obamacare law was.” The first-term Republican is not a top Democratic target but could face a tougher re-election fight in an increasingly hard fought presidential state.
Asked if the lawsuit would be a political anchor for Republicans, Sen. John Barasso (R-WY), the No. 3 Republican in the chamber, downplayed concerns, saying that the electoral environment can shift quickly.
“Every election is unique in its own way but when you get a look at what's happening in the world, with the coronavirus, the impact on the economy—four months ago, this was going to be an election about the economy,” said Barasso. “Now that’s all changed.”
But other Republicans acknowledge that the lawsuit will be a headwind for them. “If we're not out there with something, especially trying to reform the industry,” said Braun, “you know, I think we'll be responsible accordingly.”