You didn’t really think the GOP was done trying to dismantle Obamacare, did you?
On Friday, US District Court Judge Reed O’Connor — a George W. Bush appointee already infamous for his far-right decisions — ruled the entire Affordable Care Act (ACA) unconstitutional and struck it down in a case titled Texas v. Azar that was brought by a clutch of Republican state attorneys general and two GOP governors. Notably, Judge O’Connor did not issue an injunction to immediately halt the operation of the law, as that would have hurled the entire US health care industry into chaos.
The ruling — deliberately timed to coincide with the deadline for ACA sign-ups, which has typically been the peak period for new user activity — sowed massive confusion. The case will now wend its way through the judicial system, likely all the way to the Supreme Court itself.
The larger significance of this ruling may not be immediate — the ACA is still in effect — but is nonetheless profound. The ACA, for all its flaws and shortcomings, has been a boon to many. Young people who can stay on their parent’s health insurance until they are 26, and the millions with pre-existing conditions who might otherwise find themselves priced out of the health insurance market entirely, are just some of its beneficiaries. Millions of previously uninsured people now have basic health insurance. It is not single-payer health care or Medicare for All by a long chalk, and is rife with its own problems, but it is a far sight better than the shabby, disorganized “system” it replaced.
That, right there, is why the GOP feels obligated to destroy it. For Republicans, the ACA represents a profound philosophical and existential threat. Philosophically, the GOP cannot allow the ACA to succeed because that would prove that sometimes, government actually works, and since “government doesn’t work” is at the beating core of their message, the ACA must be sabotaged to prove that government doesn’t work. The Republican Party rarely lets facts interfere with its binding ideologies these days.
Existentially, the GOP well remembers losing millions of voters to Social Security, Medicare and Medicaid, which still work despite repeated Republican attempts to undo them in the name of “fiscal responsibility.” If the ACA were allowed to stand, the GOP would risk losing another generation of voters to a highly effective social problem… or, perish the thought, it would lay the groundwork for actual, genuine health care for all. Can’t have that.
Judge O’Connor’s ruling on Friday is another chapter in an eight-year onslaught by the GOP against the ACA. From the moment of its final passage in 2010, the Republican Party has bent its entire will toward its obliteration.
GOP operatives and paymasters fashioned the “new” Tea Party movement out of the misinformed rags of its base to act as political shock troops at town hall meetings and other venues (to the delight of the news media, which reported on 10-person Tea Party “rallies” as breathlessly as the first moon landing) to attack the law.
The ACA survived two stout challenges in 2012 — one from Romney’s presidential campaign and the other in the Supreme Court — while House and Senate Republicans tried to repeal it legislatively nearly 100 times. It took the election of Donald Trump, coupled with the GOP takeover of both the House and Senate, to put the ACA in the genuine peril it knows today.
The seeds of Friday’s ruling were sown in June 2017, when John McCain’s thumbs down helped to defeat Trump’s third and final failed attempt to overthrow the ACA by way of Congress. The fact that a GOP-controlled House and Senate, combined with a GOP-controlled White House, so thoroughly failed to pass a bill they’d been crowing about for years was a towering humiliation, but they were not in any way finished trying to kill the ACA.
The following December, with the enthusiastic approval of McCain’s not-so-maverick-y-this-time thumb, Congress passed a monstrous trillion-dollar tax giveaway to rich people without a single Democrat in either chamber voting “Aye.” Within that bill was a measure to repeal the ACA’s individual mandate, which required people to either purchase insurance or pay a tax penalty.
It was on this hook that Judge O’Connor hung his hat on Friday. By his interpretation, the absence of the individual mandate renders the entire ACA unconstitutional (ironic, since the GOP spent eight years and one Supreme Court case arguing the mandate itself was unconstitutional). A galaxy of legal experts consider this after-hours ruling to be the height of nonsensical judicial overreach, but that does not make the decision any less dangerous to the ACA and to the millions who now rely on it.
You see, Judge O’Connor’s ruling has now entered the bloodstream of the federal judiciary, as was absolutely and solely intended. Odds are better than good that, within a year, Texas v. Azar will be on the menu for the Supreme Court. With the murderer’s row of Justices Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch and Brett Kavanaugh up to bat, absolutely anything is possible. By the next presidential election, Texas v. Azar may join McCutcheon and Citizens United in the infamous 21st century ranks of damaging right-wing high court rulings.
The doom of the ACA is far from settled, however, as the politics involved are decidedly uncomfortable for the GOP. Obamacare is more popular today than ever before. The 2018 midterm elections bore witness to one of the most brashly dishonest campaign arguments the Republicans have ever foisted. After spending years trying to destroy the ACA, House Republicans had to lie through their teeth about their support for the most popular provisions of the law. To no small degree, the Democrats’ dominant showing in the 2018 midterms was due to their vocal defense of the ACA.
This latest ruling has people badly worried about the status of their health care, and Republicans today are finding it difficult to strike the necessary rhetorical straddle after the Republican president of the United States spent the weekend doing a Twitter dance on what he incorrectly perceived to be the final resting place of Obamacare.
House Democrats, for their part, intend to hold hearings on the ruling and its effects on the public. Senate Democrats are already talking about some form of legislative intervention into the ruling, which will go nowhere without some Republican help… and therein lies the rub.
It will take the better part of a year for Texas v. Azar to make its way through the courts. If it reaches the Supreme Court, the 2020 presidential election will be well underway, and again, the ACA is now quite popular. Senate Democrats may wind up getting help on that injunction from Republicans who see the waterline rise just below their noses.
Some even argue this decision and its aftermath are potentially cause for celebration. “Nearly a decade of constant and cynical assault on what was supposed to be a compromise bill,” writes Ezra Klein for Vox, “has pushed the Democratic Party left on health care policy, and persuaded Democrats everywhere that trying to compromise or placate Republicans is foolish. The legacy of the GOP’s Obamacare repeal strategy won’t be the Affordable Care Act’s destruction, but Medicare-for-all’s construction.”
It’s a big damn mess, and deliberately so. The Republican Party cannot abide a functioning government program, especially one with the approval rating of the ACA, and so Judge O’Connor took it upon himself to skewer it and serve it up to a right-bent Supreme Court. Who will pay the ultimate price for that decision — millions of people who need health insurance or the Republicans who tried to take it away — remains to be seen.