Tom Williams/CQ Roll Call via AP Images
House Speaker Nancy Pelosi can use leverage to quickly take action to save the Affordable Care Act.
The death of Supreme Court Justice Ruth Bader Ginsburg means that the legally incoherent California v. Texas, which Republicans filed once the individual-mandate penalty was reduced to zero, has gone from a long-shot case against the law to one with a real possibility of succeeding. Oral arguments in the case are scheduled for November 10. If a new, conservative judge were to replace Ginsburg, it is possible to imagine the Court ruling 5-4 against the law. Even if the case is heard before the new justice is seated, a 4-4 deadlock would push the case back to a lower court, where a district judge would decide what parts of the law to toss out. Conceivably, the entire Affordable Care Act could go away before the end of the year, and even if that were appealed, a 6-3 split on the Supreme Court could solidify that ruling.
The only silver lining is that the entire lawsuit is based on an absurd technicality, and House Speaker Nancy Pelosi (D-CA) can use leverage to quickly take action to save the health care law. As the article below, written last year, demonstrates, if House Democrats attach a full repeal of the individual mandate (which technically still exists but with a penalty of zero dollars) to a must-pass bill, that should be sufficient to kill the case. As Pelosi acknowledged on This Week With George Stephanopoulos on Sunday, “Congress has the ability to overturn the injustices that spring from the Supreme Court.” But the House only has a one-week window to try in this case. Just yesterday, Pelosi released a must-pass continuing resolution to prevent a government shutdown on October 1. She could add the individual-mandate repeal as a condition of passing the continuing resolution, preserving the rest of the law. We have enough data now to know that the mandate is not essential to the ACA’s functioning; all it does is give conservative fever dreams of overturning the law in court a flicker of hope. House Democrats have literally one last chance to save the ACA, or at least force all Senate Republicans up for re-election to shut down the government to save the hated individual mandate, in a cynical ploy to take away health care from millions.
In December, two conservative justices on the Fifth Circuit United States Court of Appeals came to a truly insane ruling that could undermine the entire Affordable Care Act. The case involves the now-toothless individual mandate. Explaining all the ways this ruling is a shockingly bad-faith assault on the basic idea of constitutional governance would take too long, so I will leave that for others. The crux of the decision is this: Since Republicans lowered the individual-mandate penalty to zero dollars, it is no longer constitutional, and that somehow could mean that the entire Affordable Care Act should be unconstitutional. (The Fifth Circuit actually punted on this crucial second step, leaving it to a lower court to decide whether the whole ACA should be thrown out.)
Speaker Nancy Pelosi now needs to step up to end this nonsense.
The decision was written in such a way to draw out appeals for years, giving Republicans hope of replacing one or more of the liberal Supreme Court justices with a radical who would vote for this nonsense sometime after the election. This leaves millions of people and businesses in a weird limbo, not knowing whether the protections they rely on will remain long term.
Democrats have mostly ignored this case, given the baseless logic behind it. But there is an easy solution. The whole legal argument depends on the fact that Republicans used reconciliation to pass the 2017 tax bill through the Senate with a simple majority. Due to the restrictions around reconciliation, Republicans couldn’t technically repeal the mandate in total, instead just lowering the penalty to nothing. The case effectively goes away if Congress either adds back in a penalty (even of just one cent), or just officially repeals the mandate, thereby severing it from the whole health care law.
Trying to bring back a penalty is a terrible option. The mandate is deeply unpopular, and it would be easy for Senate Republicans to oppose that move. What’s more, in the months since the mandate penalty went away, we’ve learned that it wasn’t as necessary to making the Obamacare system work as Democrats insisted in 2009 and 2010. Fully repealing the individual mandate, on the other hand, is an easy fight to win, as well as good policy. It is generally bad to have unenforced laws on the books.
Pelosi could force Republicans to shut down the government to advance a deeply unpopular judicial power grab.
Pelosi should put a full repeal of the mandate in the next must-pass piece of legislation, and dare Republicans to oppose it. There’s a unique opportunity created by the year-end government spending bill. Several health-related extensions were intentionally set to expire in May, in order to give space for a deal on legislation reforming surprise billing and high drug prices. But Pelosi could put a repeal of the mandate in there as well. Or she could wait until the government spending bill due next September 30. She could force Republicans to shut down the government to advance a deeply unpopular judicial power grab.
All congressional Republicans would have to explain whether or not their vote to end the mandate penalty was actually meant to be a secret backdoor way of repealing the very popular Medicaid expansion, ending protections for pre-existing conditions, and allowing young adults to stay on their parent’s health plan. If they opposed, Republicans would have to publicly say they are now cynically for the individual mandate, after being against it as part of a conspiracy to take away people’s health insurance. Already one Republican senator is trying to distance himself from the whole business.
Pelosi has made her brand defending the ACA, but so far that hasn’t meant much more than not letting bad bills pass the House. Her statement after the ruling provides only condemnation, but no plan. Now she needs to be truly proactive. Even if there is only a 5 percent chance of the lawsuit winning, that is too much of a risk. Forcing the issue as soon as possible, when the lawsuit is still seen as a long shot, is the best time to deal with it, if your goal is to maintain the protections for those with pre-existing conditions and other ACA advances.
The logic behind this move is simple. Either the stupid lawsuit is crushed by officially repealing a toothless mandate that is doing nothing anyway, or congressional Republicans plus President Trump are forced to very publicly come out against the most popular elements of the health care law, by flipping to defend the least popular part. Rarely do parties get a chance to force their opponents into showing their dishonesty and cynicism so explicitly. Pelosi should take it.
