- The Washington Times - Sunday, December 16, 2018

President Trump says a federal judge’s decision to strike Obamacare in its entirety is an early Christmas gift that clears the decks for a health care plan in the new year.

“We are going to end up with incredible health care, which is the way it should have been from Day One,” he told weekend revelers at a White House holiday party. “And it’s going to happen. It now has a chance to happen.”

The reality will likely be much different.

Democrats vowed to fight “tooth and nail” against U.S. District Judge Reed O’Connor’s ruling, which said Congress’ decision to zero out the “individual mandate” penalty for shirking insurance in the Republican tax bill, which takes effect next year, invalided the rest of the sweeping health care law.

“It undoes pre-existing conditions [protections]. It jeopardizes the tens of millions who are getting good health care in the exchange but goes way beyond that,” Senate Minority Leader Charles E. Schumer, New York Democrat, told NBC’s “Meet the Press.” “It would eliminate a lot of maternal care, all kinds of women’s health. It’s an awful, awful ruling.”

The timing of the judge’s decision was remarkable — on the eve of the deadline to shop for Obamacare coverage in much of the country.

Even as Mr. Trump applauded the blow, his administration told customers to keep shopping for coverage.

The judge didn’t enjoin the program, so it remains intact while the fight wends its way through appeals courts.

The opinion is befuddling some legal scholars, who said Congress intentionally left the rest of the law in place. Capitol Hill Republicans are now stuck between their antipathy for the 2010 law and the real-world difficulty of offering inexpensive health care coverage that protects sicker Americans.

Sen. Susan M. Collins, Maine Republican, said Sunday that she doesn’t regret voting for the Republican tax bill that cleared the way for 20 states to challenge the rest of the law. But she said Judge O’Connor went too far in striking its generous subsidies, vast expansion of Medicaid and other goodies.

“He could have taken a much more surgical approach and just struck down the individual mandate and kept the rest of the law intact. I believe that it will be overturned,” she told ABC’s “This Week.”

In some ways, Republicans got exactly what they sought for eight years: a decision that would wipe the Affordable Care Act off the books.

Yet it went beyond what Mr. Trump’s Justice Department anticipated and thrust the wider Republican “repeal and replace” foibles back into the limelight, even as the party tries to regroup from bruising losses in the midterm elections.

AshLee Strong, a spokeswoman for House Speaker Paul D. Ryan, Wisconsin Republican, said the chamber “was not party to this suit, and we are reviewing the ruling and its impact.”

House Majority Whip Steve Scalise, Louisiana Republican, took a more defiant posture, saying fellow party members in his chamber are the only ones who have tried to replace Obamacare with a new plan.

Majority Leader Kevin McCarthy of California, who will lead Republicans into the minority next year, said his party’s concerns with the constitutionality of Obamacare were validated, though he echoed the president’s call for a bipartisan replacement.

“Get it done,” Mr. Trump tweeted to Senate Majority Mitch McConnell, Kentucky Republican, and Nancy Pelosi, the California Democrat who likely will become House speaker.

Instead, Democrats said they will intervene in the lawsuit when they take the House majority in the new year and try to tie Republicans to the state-driven lawsuit. Republicans vowed during the campaign to ensure that insurers accept sicker Americans and charge them fair prices for coverage.

“While the district court’s absurd ruling will be immediately appealed, Republicans are fully responsible for this cruel decision and for the fear they have struck into millions of families across America who are now in danger of losing their health coverage,” Mrs. Pelosi said.

Red states filed the lawsuit after Republicans failed to replace the law legislatively last year. Their efforts faced a major public backlash and were the focal point of Democratic efforts to flip seats during the midterm elections.

The strategy worked. Democrats flipped dozens of House seats to retake the majority.

Attorneys general in blue states intervened in the pending case, saying the 2010 Affordable Care Act should stand because the tax will still be on the books, even if it isn’t actively collecting revenue, and that Congress decided to keep the rest of Obamacare in place last year.

Judge O’Connor disagreed. He said Chief Justice John G. Roberts Jr. was clear in his 2012 opinion that tethered the law’s benefits to a revenue-collecting tax, even if Republican tax reformers didn’t set out to kill the entire health care law.

“In some ways, the question before the court involves the intent of both the 2010 and 2017 Congresses,” he wrote. “The former enacted the ACA. The latter sawed off the last leg it stood on. But however one slices it, the following is clear: The 2010 Congress memorialized that it knew the individual mandate was the ACA keystone.”

Analysts said they expect Democratic attorneys general to seek a stay of the opinion while the fight pivots to the 5th U.S. Circuit Court of Appeals.

It’s unclear where the appellate courts will land. Analysts have cast doubt on the plaintiff states’ arguments, and Chief Justice Roberts remains the swing vote at the Supreme Court despite the conservative majority ushered in by Justice Brett M. Kavanaugh’s confirmation.

Texas Attorney General Ken Paxton, who spearheaded the lawsuit, said the ruling “will give President Trump and Congress the opportunity to replace the failed social experiment with a plan that ensures Texans and all Americans will again have greater choice about what health coverage they need and who will be their doctor.”

It may be too late for Republicans, though. The Democrats’ House victories have taken repeal off the table for the next two years.

Instead, the legislative debate has shifted the debate to ways to stabilize or build on Obamacare, while the administration offers states greater leeway to riff on the program with their own ideas.

Mr. Schumer on Sunday said Republican leaders in the days ahead should mimic the House Democrats’ push to intervene in the case, though one senior Republican, Sen. Roy Blunt of Missouri, wasn’t keen on lawmakers attempting to sway the higher court on how to handle the appeal.

He also ruled out implementing a low tax in order to satisfy the judge’s ruling, saying the imposition of a levy was “always a stretch.”

“Coming up with a 1-cent gimmick would not have much appeal to me,” he told NBC.

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