- The Washington Times - Sunday, October 4, 2020

Conservatives yearn for a Supreme Court ruling against Obamacare next year that President Trump says will clear the way for a “far better” replacement.

But the reality is messy. A Washington stalemate or a push for narrow fixes is far more likely.

Democrats, who are poised to control the House and maybe more, want to expand on, not abandon, their signature 2010 program.

They would be predisposed to patching up the law if Mr. Trump is still president and the justices agree with Republican-run states that say the Affordable Care Act must go because its “individual mandate” isn’t collecting money anymore.

The upshot is another thorny Washington debate, with federally funded insurance for millions of Americans hanging in the balance.

“If the court were to throw out the whole law, and coverage for preexisting conditions coverage with it, there would be enormous pressure for both sides to find a way to fix it. But for that to happen, both sides will have to come off positions they are dug in on right now,” said Robert Laszewski, a health care policy consultant in Alexandria, Virginia. “Democrats want to fix Obamacare and Republicans want to backpedal on it, making any compromise highly problematic.”

No one knows whether the high court will strike down all or part of Obamacare, but it’s a major issue in the presidential campaign. Former Vice President Joseph R. Biden is proposing an expansion of the law, and Republicans are moving to solidify the court’s conservative majority ahead of oral arguments in November and a likely ruling by July.

Mr. Trump was unable to repeal and replace his predecessor’s signature law when Republicans controlled all the levers of power in Washington in 2017. Months later, however, Republicans used an overhaul of the tax code to zero out Obamacare’s penalty for shirking insurance, known as the individual mandate.

Republican state attorneys general saw an opening. They filed a lawsuit saying that since Chief Justice John G. Roberts Jr. upheld Obamacare under Congress’ taxing powers, the framework fails and the health care law is invalid if the mandate no longer collects tax revenue.

The lawsuit was viewed as a long shot, but it made it to the Supreme Court.

Now, Republicans are rushing to fill a vacancy with Judge Amy Coney Barrett, a federal appeals court judge who criticized the 2012 decision to save Obamacare in her academic writing. Her confirmation would give conservatives a 6-3 edge on the court.

Senate Majority Leader Mitch McConnell, Kentucky Republican, mocked Democrats on Tuesday for suggesting that Judge Barrett would block families from accessing health care. He called their criticism “a joke.”

Mr. Trump is relishing the chance to eliminate his predecessor’s law, even though he has not put forward a comprehensive alternative beyond a pledge to protect sicker Americans.

“Obamacare will be replaced with a MUCH better, and FAR cheaper, alternative if it is terminated in the Supreme Court. Would be a big WIN for the USA!” Mr. Trump tweeted over the weekend.

Yet even if Mr. Trump wins reelection, handicappers say, Republicans are unlikely to regain the House majority and might even lose Senate control. That would set the stage for another chapter in the Obamacare wars.

“If the Supreme Court invalidates the ACA with a divided government, I think we would see political chaos and potentially millions of people losing coverage as a result,” said Larry Levitt, a senior vice president at the Kaiser Family Foundation, a health care policy organization. “If Democrats sweep the election, there are some easy legislative fixes to protect the ACA from a ruling against it.”

He said Democrats could add a modest penalty for shirking insurance so the mandate is collecting revenue again, or they might write bills that eliminate the mandate or add language saying the rest of Obamacare is severable from the mandate.

Lanhee J. Chen, a fellow at Stanford University’s Hoover Institution, said both sides will feel pressure to reach a deal to protect sicker Americans’ access to coverage if control of Washington remains split.

“I do see them coming together to do something limited on that,” said Mr. Chen, who advised Mitt Romney’s 2012 campaign on health care. “The more protracted it gets, the harder it gets to get to an agreement.”

The hard part would be figuring out whether to backfill the rest of the law’s provisions if the court decides the entire law cannot be separated from the zeroed-out mandate.

“They might take a phased approach, where they do little by little. But it’s going to be messy,” Mr. Chen said.

Mr. Trump set the table for the potential debate by signing an executive order saying it is the policy of the U.S. that people with preexisting conditions be able to get health care coverage, a popular protection built into Obamacare.

Democrats, meanwhile, are using the same playbook that worked for them in the 2018 midterm elections. They say Republicans would be responsible if the court invalidates a law that extended insurance to more than 20 million people through federal subsidies and the vast expansion of Medicaid coverage in most of the states.

“If you have a preexisting medical condition, that benefit will be gone. If you are a woman, we will be back to a time where being a woman is a preexisting medical condition. If your children are on your policy — say, your adult children are on your policy — no longer will they be, and that in a time of a pandemic,” House Speaker Nancy Pelosi, California Democrat, told CNN on Sunday.

A Kaiser Family Foundation poll in July found that 53% of Americans think the Supreme Court should uphold the health care law and 57% disapprove of the Trump administration’s request to the Supreme Court to side with Republican state officials pushing the lawsuit.

The Kaiser poll had a partisan split, however. At least 7 in 10 Republicans said they would like the court to overturn the law, and 77% backed Mr. Trump’s position.

The Supreme Court likely would issue a stay to give Congress time to assemble a plan if it decides the individual mandate isn’t severable from the rest of the law, said Grace-Marie Turner, president of the Galen Institute, which promotes free market health care policies.

“Congress will have to act. There is a growing consensus that the ACA is not working. The centerpiece of Joe Biden’s health platform is to try to fix the troubled law,” said Ms. Turner, whose institute is crafting conservative changes that can gain support.

Mr. Biden is pushing for an expansion of federally funded subsidies and a government-negotiated “public option” that would compete with private plans in the market. Some middle-income Americans had too much income to qualify for the subsidies but couldn’t afford higher premiums.

Mr. Laszewski said he doesn’t see Democrats spending time on temporary fixes if Mr. Biden wins the presidency in November and Democrats take control of both chambers of Congress.

“They already have the Biden plan on the shelf, and I would see them quickly moving to implement that well before an expected June Supreme Court ruling,” he said.

Colin Seeberger, a spokesman for the liberal Center for American Progress, said if Democrats retake the White House and both chambers of Congress, they should be able to pass expanded subsidies through budget reconciliation — a fast-track measure that allows legislation to get through the Senate on a majority vote.

But retaining all of Obamacare’s consumer protections for preexisting conditions would require 60 votes to overcome a filibuster, reopening the thorny debate.

“The American people’s health care isn’t a bargaining chip, and particularly in the middle of a pandemic, it’s deadly serious,” he said.

The White House, meanwhile, says Obamacare has “been a failure” for the healthy and sick alike because of limited health care choices and provisions that force people into unaffordable plans.

White House deputy press secretary Judd Deere said Mr. Trump eliminated the most onerous part of Obamacare — the individual mandate — and in a second term would protect sicker Americans while expanding affordable choices.

“I won’t predict what the Supreme Court will do,” he said, “but should Obamacare fall, Democrats will finally be forced to come to the table and work with this president on a common-sense, bipartisan solution.”

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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