Supreme Court to hear appeal from bogus Obamacare decision in October

Back in January, the U.S. Supreme Court declined to expedite ‘Obamacare’ appeal, leaving protections hanging in the balance. The parties had sought a fast-track appeal for a decision this term, by the end of June, so the issue could be litigated in the court of public opinion in the election this fall.

Today the Supreme Court announced it would hear the appeal in its next term beginning in October, with a decision to come long after election day. This was a decision clearly influenced by the political calendar to aid Republican candidates. Any denials by the conservative justices will ring hollow.

Amy Howe at SCOTUSblog reports, Justices grant Affordable Care Act petitions:

Just as it did almost eight years ago, the Supreme Court will once again weigh in on the constitutionality of the Affordable Care Act’s individual mandate. The justices announced today that they had granted two petitions involving the ACA – one by California and a group of states, the other by Texas and a different group of states – asking the Supreme Court to review a ruling by the U.S. Court of Appeals for the 5th Circuit that struck down the mandate. The justices will hear oral argument in the case next fall, with a decision likely to follow sometime in 2021.

The Supreme Court has already rejected a challenge to the constitutionality of the mandate once. In 2012, Chief Justice John Roberts agreed with the court’s four more liberal justices that the mandate was constitutional because the penalty imposed on individuals who did not buy health insurance was a tax, which the Constitution allows Congress to impose.

But in 2017, Congress enacted an amendment to the ACA that set the penalty for not buying health insurance at zero – but left the rest of the ACA in place. That change led to the dispute that is now before the court: A group of states led by Texas (along with several individuals) went to federal court, where they argued that because the penalty for not buying health insurance is zero, it is no longer a tax and the mandate is therefore unconstitutional. And the mandate is such an integral part of the ACA, they contended, that the rest of the law must be struck down as well.

California and the other states joined the lawsuit to defend the mandate. The district court agreed with both the challengers’ arguments, holding that the mandate is now unconstitutional and that, as a result, the entire ACA should be invalidated. In December, the 5th Circuit upheld the district court’s conclusion that the mandate is unconstitutional. However, the court of appeals sent the case back to the lower court for it to reconsider what Congress had in mind when it eliminated the penalty and whether any parts of the ACA could still survive. [Severability.]

In January, the states defending the mandate and the U.S. House of Representatives went to the Supreme Court, filing two separate petitions for review. They asked the justices to step in immediately and decide whether the mandate is constitutional, without waiting for the lower courts to act. Doing so, the states and the House argued, would eliminate the “massive uncertainty” that currently surrounds the future of the ACA; otherwise, they suggested, the case would not return to the Supreme Court until 2022. Moreover, the states and the House urged the justices to fast-track the two petitions for review, to ensure that the dispute could be briefed and argued this term if review were granted.

After the justices declined to expedite their consideration of the petitions, in February the federal government, Texas and other states and the individuals challenging the mandate all filed briefs opposing review. They stressed that the court should stay out of the dispute for now and instead wait for the lower courts to rule. Everyone involved in the case agrees, the federal government noted, that a failure to comply with the individual mandate “no longer carries any significant real-world consequence”; as a result, the question whether the mandate is constitutional “is not itself a matter of any practical urgency.” What California and the House really want the Supreme Court to decide, the government argued, is how much of the ACA can survive if the mandate is unconstitutional – even though the 5th Circuit did not reach that question. Waiting until the lower courts have ruled again will also simplify the inquiry into whether California and the other states even have a legal right to appeal the ruling, the government added.

Today the Supreme Court granted California’s petition for review, which asks the justices to weigh in on three questions: whether the challengers have a legal right to sue at all; whether the mandate is now unconstitutional; and whether, if the mandate is unconstitutional, it can be separated from the rest of the ACA [severability]. The justices also granted a cross-petition filed by Texas, which asks the court to decide whether the district court was correct in deeming the entire ACA invalid.

The two petitions will be consolidated for one hour of oral argument. The oral argument will likely be scheduled for October of this year, in the run-up to the 2020 presidential election, although the justices almost certainly will not issue their ruling until after the election – and probably even the inauguration.

Let’s be clear: The Trump administration, Republicans in Congress, and the Republican states attorney general who brought this case (including Arizona’s AG Mark Brnovich), all want to invalidate Obamacare in its entirety with all of its patient protections, subsidized health care, expanded Medicaid, and other benefits under Medicare, based upon the Republican controlled Congress in its 2017 tax reform bill having repealed the individual mandate as a means of sabotaging Obamacare, in pursuit of this bogus legal theory that the entirety of Obamacare turns on the individual mandate.

Clearly it does not, because Obamacare has continued to thrive since the GOP repealed the individual mandate, and Americans continue to receive subsidized healthcare, more states expand Medicaid, and benefits continue to flow to Medicare patients while this case is being litigated. As Supreme Court considers its fate, Obamacare’s popularity is higher than ever:

The result comes from the latest monthly tracking poll on healthcare issues by the Kaiser Family Foundation, taken in mid-February and released Friday.

The poll found that 55% of the public now has a favorable view of the ACA, its highest reading since the first poll in April 2010. The favorable rating is up two points from the previous poll in January, while the unfavorable rating remained the same at 37%.

[The] argument of Texas and 17 other red states, which is widely derided by legal authorities, is that by eliminating any penalty for violating the ACA’s individual mandate, the 2017 tax cut bill invalidated the entire law.

Their position, which is opposed in court by a coalition of blue states including California, won favor from a conservative [activist] federal judge in Texas. But a federal appellate panel stopped short of declaring the entire law unconstitutional in December, ordering the case sent back to the same judge for further consideration.

KFF says the uptick in the ACA’s popularity reflects strong continued support by Democrats, with “85% now expressing favorable views compared to 53% of independents and 18% of Republicans.” Most Republicans — 77% — still regard the ACA unfavorably, the poll found.

However, it also found that repealing the ACA has fallen sharply as a goal of Republican voters since March 2016, before the last presidential election. That month, opposition to or repeal of the ACA was the most important healthcare-related issue for GOP voters, with 29% ranking it first.

In the latest poll, only 3% of Republicans ranked ACA repeal as their top concern. Ranking higher were reining in healthcare costs (24%), opposition to single-payer or “Medicare for all” — both Democratic goals (19%) — and increasing access to healthcare (15%).

More importantly, after more than 10 years of running on opposition to Obamacare, Republicans have yet to offer a detailed viable alternative to Obamacare. They are not serious about access to affordable health care.

Republicans believe health care is a privilege for those who can afford it, not a human right, and if you can’t afford it “perhaps you should die and decrease the surplus population.” This was their goal in sabotaging Obamacare with the GOP’s 2017 tax reform bill repealing the individual mandate.

While Republicans are hellbent on taking health care away from Americans, Democrats are debating the best ways to expand health care coverage to every American, as a basic human right.

KFF found that a national Medicare-for-all plan or a “public option” — a government-administered plan that would compete with private insurers — have majority support among voters overall. The public option outpolls Medicare for all when voters are asked to choose one or the other; half the voters favor Medicare for all, but two-thirds favor the public option.

This could be partially the effect of branding, as the particulars of Medicare for all are still murky, but is seen by many voters as a program that would entirely replace private insurance even if they preferred private plans. “Public option” suggests greater choice.

The current Democratic debate on expanding Obamacare versus “Medicare for all” will all be for naught if the five conservative justices on the Supreme Court accept this bogus GOP theory that all of Obamacare is invalid without the individual mandate.

Overnight, the Supreme court will wreak havoc on the health insurance markets that have priced in Obamacare, and on medical services delivery. It would leave Americans without the patient protections provided by Obamacare, subsidies for obtaining healthcare insurance, and eliminate expanded Medicaid coverage, as well as other benefits under Medicare.

Health care spending accounts for 17.7 percent of the nations Gross Domestic Product (2018). Invalidating Obamacare will cause a massive economic disruption. Five men on the Supreme Court should not be able to inflict this kind of economic disruption and pain on American citizens.

This is a decision for the people’s representatives in Congress to make and, so far, Obamacare has survived every Republican assault.

We can stop this Republican assault on healthcare by electing more Democrats to public office.