The evil GOP bastards’ scheme for a back door repeal of ‘Obamacare’ in the courts

A part of the GOP’s “tax cuts for corporations and plutocrats” bill back in December was the under-reported repeal of the individual mandate, which didn’t actually repeal the coverage requirement — it only repealed the tax penalty provision.

This was part of the long game the evil GOP bastards play to deny Americans access to affordable health care. By removing the tax penalty, it allowed the state Attorneys General from 20 red states, including Arizona, to file a lawsuit (.pdf) attempting a back door repeal of ‘Obamacare” through the courts, rather than through Congress.

These evil GOP bastards assert the legal sophistry that the individual mandate is now unconstitutional — after the GOP’s malicious sabotage of “Obamacare” in the tax bill – and now the rest of the ACA should fall as part of the GOP’s legal sophistry in court.

The Arizona Republic reports, Arizona among 20 states seeking repeal of Affordable Care Act mandate:

Arizona is among 20 states asking a federal court in Texas to hold the Affordable Care Act’s individual mandate unconstitutional because the tax that penalized anyone who did not carry health insurance has been repealed.

The filing, made in U.S. District Court in Fort Worth on Monday, also asks that the court find the entire health care law unconstitutional, but if not, to amend the law by repealing the mandate.

The filing is largely based on the argument that the repeal of the law’s tax penalties, included in the tax cut bill passed by Congress and signed by President Donald Trump in December, effectively does away with a key reason the U.S. Supreme Court upheld the law in a 2012 case.

Or as this explainer at Axios.com lays out:

Here’s how the logic of this argument plays out:

  • When the Supreme Court upheld the mandate in 2012, it said Congress could not force consumers to buy health insurance, but could impose a tax penalty on those who didn’t.
  • When Congress repealed the individual mandate as part of its recent tax bill, it didn’t actually repeal the coverage requirement — it just dropped the tax penalty to $0.
  • Therefore, the mandate itself is still on the books, but without the tax penalty the Supreme Court upheld.
  • The lawsuit further argues that the rest of the ACA cannot be separated from the mandate — essentially a retread of a part of the 2012 case that the high court never needed to settle.

Red States: This is ‘irrational’

The filing argues the Supreme Court in that case [actually Chief Justice John Roberts’ majority opinion] upheld the individual mandate and penalties based on the reasoning that it fell within Congress’ power to impose taxes [under the tax clause rather than broader powers under the commerce clause.]

However, the amendment passed in December repealing the penalties now “forces an unconstitutional and irrational regime onto the states and their citizens,” the states argue.

The filing contends that in its 2012 ruling, the Supreme Court stated that it was the tax that justified the mandate that Congress passed requiring people to purchase a health care plan — a mandate that Congress otherwise would not have the authority to impose [only because of the Chief Justice’s flawed opinion.]

“The individual mandate and the tax penalty are inextricably intertwined — one cannot exist without the other,” the states’ filing argues.

As Sam Baker at Axios.com points out, the plaintiff red states have a procedural problem with their legal sophistry: “With no enforcement mechanism in place for the individual mandate, it’ll be a lot harder to convince a court that it’s harming anyone — a key component of having the legal standing to sue.” In other words, no harm = no case or controversy = no standing. Oops!

The filing names the U.S. Department of Health and Human Services and the Internal Revenue Services as defendants, along with each agency’s director.

About 167,000 Arizonans enrolled

The case was filed by Wisconsin Attorney General Brad Schimel and Texas Attorney General Ken Paxton on behalf of their states and attorneys general in 18 other states, including Arizona Attorney General Mark Brnovich.

About 167,000 Arizonans enrolled for coverage in 2018 during last fall’s enrollment period, according to the Centers for Medicare and Medicaid Services website. That figure was down from the previous year, but also occurred during a shorter enrollment period than the prior year. In addition, federal funding was cut for promoting the sign-up period.

Other participating states in Monday’s court action include  Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, and West Virginia.

The evil GOP bastards are not done with their malicious attempts to sabotage “Obamacare.” Margot Sanger-Katz explains at the New York Times, A Big Divergence Is Coming in Health Care Among States:

Little by little, the Trump administration is dismantling elements of the Affordable Care Act and creating a health care system that looks more like the one that preceded it. But some states don’t want to go back and are working to build it back up.

Congress and the Trump administration have reduced Obamacare outreach, weakened benefit requirements, repealed the unpopular individual insurance mandate and broadened opportunities for insurers to offer inexpensive but skimpy plans to more customers.

Last week, the administration released its latest proposal along these lines, by changing the definition of so-called short-term plans. These plans don’t need to follow any of the Obamacare requirements, including popular rules that plans include a standard set of benefits, or cover people with pre-existing conditions. If the rule becomes final, these plans could go from short term to lasting nearly a year or longer.

Taken together, experts say, the administration’s actions will tend to increase the price of health insurance that follows all the Affordable Care Act’s rules and increase the popularity of health plans that cover fewer services. The result could be divided markets, where healthier people buy lightly regulated plans that don’t cover much health care, lower earners get highly subsidized Obamacare — and sicker middle-class people face escalating costs for insurance with comprehensive benefits.

But not everywhere. Several states are considering whether to adopt their own versions of the individual mandate, Obamacare’s rule that people who can afford insurance should pay a fine if they don’t obtain it. A few are looking to tighten rules for short-term health plans. Some states are investing heavily on Obamacare outreach and marketing, even as the federal government cuts back.

The result is likely to be big differences in health insurance options and coverage, depending on where you live. States that lean into the changes might have more health insurance offerings with small price tags, but ones that are inaccessible to people with health problems and don’t cover major health services, like prescription drugs. States pushing back may see more robust Obamacare markets of highly regulated plans, but the price of those plans is likely to remain higher.

Legislation to replace the individual mandate has already been introduced in Maryland and New Jersey with prominent sponsors. Political leaders in other states, including California, Washington, Rhode Island, Vermont, Connecticut as well as the District of Columbia, are weighing options for replacing the mandate this year, as Stephanie Armour reported in The Wall Street Journal. The mandate was designed to give healthier people an incentive to buy insurance before they fell ill, lowering the cost of insurance for everyone who buys it.

* * *

[Maryland is] trying a new strategy. People who fail to obtain insurance would still be charged a fine, but they would be allowed to use that money as a “down payment” on a health plan if they wished. Legislators estimate that many people subject to the penalty would not owe anything more to buy health insurance, after federal tax credits are applied.

Other states are hoping to mimic the expiring federal policy more closely. The board governing the insurance marketplace for the District of Columbia voted last week to recommend the adoption of an individual mandate replacement. Connecticut’s governor, Dannel Malloy, is considering a proposal by a Yale health economist.

Those plans are more similar to the Affordable Care Act’s approach, in part for expedience. The federal mandate is set to expire next year, and insurance companies need to develop their health plans and submit 2019 prices by this summer.

“The idea that a state would be able to stand up something, and put out any guidance, and advise stakeholders, and be able to do it by 2019, is pretty infeasible,” said Jason Levitis, a former Obama administration Treasury Department official who has developed legislation to help states draft mandate replacement bills.

Imposing state-level versions of the mandate may be a political challenge even in blue states. But other strategies are in play, too. California is one of a handful of states considering a bill that would effectively ban the short-term insurance plans proposed by the Trump administration. (New York, New Jersey and Rhode Island already effectively block them.)

Alaska, Minnesota and Oregon have already adopted such plans. Washington, New Jersey, Maine, Colorado, Wisconsin and Maryland are working on proposals. Heather Howard, who directs the state health and values strategies program at Princeton University, said that reinsurance plans operated more like a “carrot” in stabilizing insurance markets. They may prove appealing to a broader array of states, while the mandate, a “stick,” may interest politicians only in the most liberal places.

Then there are the ideologically driven Red States:

Some Obamacare-averse states are pursuing policies meant to circumvent the health law’s rules for insurance, and broaden options for cheaper, lightly regulated health plans. Idaho has announced a plan to allow insurers to offer health plans that don’t comply with many of Obamacare’s core rules, and one insurer, Blue Cross of Idaho, has said it will begin selling such plans next month. See, Idaho tests the bounds of skirting Affordable Care Act insurance rules.

Alex Azar, the Health and Human Services secretary, has been cagey about whether he will step in to enforce federal law forbidding such products. Meanwhile, the Iowa legislature is considering a bill that would allow a different type of health plan to circumvent Obamacare rules, as The Des Moines Register recently reported. Medica, the only insurer currently offering Obamacare plans, said it might depart the Iowa market if the plan were approved.

The Affordable Care Act was drafted with room for state customization, but one of its primary goals was to make health insurance around the country more uniform. Thanks to [red] state resistance to the health law, varying local conditions and a Supreme Court decision that made the Medicaid expansion optional, results have been much more uneven. Some states have seen much bigger reductions in the share of the uninsured than others. Only some states have seen insurance premiums stabilize.

“Without question I think we’re going to see a natural experiment in the states and a growing divergence in outcomes,” said Sabrina Corlette, a research professor at Georgetown University’s Health Policy Institute.

Evidence of that divergence is already here. This year, signups for Affordable Care Act health plans were nearly flat compared with last year, [after] huge cuts in federal outreach and advertisement. But states that ran their marketplaces and spent heavily on advertising saw stronger signups, while states that were more resistant to the health law experienced drops. The loss of the mandate, and the proliferation of health plans that don’t follow Obamacare’s rules, are likely to widen those gulfs.

There is no chance that our lawless Tea-Publican Arizona legislature would ever impose a state individual mandate penalty, or do anything to improve access to affordable health care.  They would deny you access to health care entirely if they could — that’s why Attorney General Brnovich is a litigant in this lawsuit.

The truth is, if you want sound public policy on health care, there is only one solution: vote GOP politicians out of office.

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