From Obamacare Skinny Repeal To Sneaky Repeal
A bipartisan group of governors, including Republican John Kasich of Ohio and Democrat John Hickenlooper of Colorado, joined last week to strongly denounce the federal lawsuit that 20 conservative states filed in February to overturn the Affordable Care Act, or Obamacare. Those states reasoned that because Congress eliminated Obamacare’s individual mandate as part of the Tax Cuts and Jobs Act, the rest of the ACA is now invalid.
The governors were not having it, fearing widespread outrage from their constituents with the elimination of protections for pre-existing conditions. Apparently it’s not a good look for them to watch their own people die in the streets with no access to health care.
From the “skinny repeal,” in which Senate Republicans tried to overturn the individual mandate but keep Obamacare’s Medicaid expansion, to the Graham-Cassidy bill, in which they tried to go further and return control of Medicare to the states, congressional Republicans have failed on multiple occasions to outright repeal Obamacare through legislation. But this latest effort through our nation’s courts represents an underhanded attempt at a sneaky repeal without having the congressional votes or public support for such a drastic and unpopular action.
The individual mandate, which forced individuals to either purchase health insurance or pay a tax penalty, was indisputably the least popular part of the Affordable Care Act. But that’s not the case for many other parts of Obamacare ― particularly the provisions that prevent insurers from discriminating against patients with pre-existing conditions, the rules that allow people to stay on their parents’ insurance policies until they turn 26 and the policies that require insurance companies to cover many preventative care services without additional cost to the patient. In fact, a June 2017 Kaiser Health tracking poll showed that 70 percent of the American public supports keeping the policy on pre-existing conditions in place.
It’s a backdoor way to repeal Obamacare without having the necessary votes to do so through Congress.
Given the broad bipartisan support for these more-popular components of Obamacare, the GOP is now using circuitous reasoning to overturn the ACA on very shaky constitutional arguments. Essentially, the crux of their stance is that the individual mandate was such a critical part of the health care law that, without it, everything else must be overturned as well. The lawsuit filing specifically states, “Once the heart of the ACA ― the individual mandate ― is declared unconstitutional, the remainder of the ACA must also fall.”
Andy Slavitt, former acting administrator of the Centers for Medicare and Medicaid Services, wrote in USA Today that “the logic is so tortured and the claims are so weak that the lawsuit is widely considered frivolous,” and many other health and legal experts agree. Conservative legal scholar Jonathan Adler even went into almost math-like detail explaining why the case was so convoluted, stating that “because Congress A claimed this provision (as originally enacted) was an essential component to the broader scheme, plaintiffs claim this still applies to the subsequent revision (even though Congress B didn’t say so), and thereby want the whole statute to go down. That’s just absurd.”
If you are as confused as I was about what Adler was getting at, I don’t blame you. Explaining the logic behind the case is an exercise in mental gymnastics.
To really understand what he said, we must first go back to the landmark 2012 Supreme Court decision in which Chief Justice John Roberts upheld Obamacare by classifying the individual mandate as a tax rather than a penalty. The Supreme Court refused to overturn the individual mandate because it viewed it as an essential component of the health care law. But since Congress later repealed the mandate, the plaintiffs now argue that without that essential component, the whole law is now invalid.