Global Statistics

All countries
267,045,973
Confirmed
Updated on December 7, 2021 6:44 pm
All countries
238,839,287
Recovered
Updated on December 7, 2021 6:44 pm
All countries
5,282,809
Deaths
Updated on December 7, 2021 6:44 pm

Global Statistics

All countries
267,045,973
Confirmed
Updated on December 7, 2021 6:44 pm
All countries
238,839,287
Recovered
Updated on December 7, 2021 6:44 pm
All countries
5,282,809
Deaths
Updated on December 7, 2021 6:44 pm

Supreme Court Won’t Ruin Obamacare

Now seemingly convinced that Republicans will approve new Supreme Court judges in the coming weeks, there is great concern among Obamacare supporters that this could also mean the end of Obamacare.

Those concerns are amplified in the hyper partisan environment leading up to the election – it makes for a good scare tactic.

The current Obamacare case before the court relates to the revocation of the 2017 law’s individual mandate for people to purchase health insurance coverage. In 2012, Chief Justice John Roberts cast a decisive vote in a 5-4 decision upholding Obamacare in general, and individual mandates in particular, as applicable under Congressional taxation powers. After the mandate was lifted in 2017, a number of Republican state attorneys general sued, arguing that because the mandate was no longer tied to certain tax penalties, it had lost its legal basis. They also argue that because individual mandates are key to a number of statutory provisions that make it a workable insurance system, the entire statute should fall, including the protection of pre-existing conditions.

This entire legal process is now driven by a decision by a Texas federal judge who bought the plaintiffs’ very weak argument in ruling that the entire bill was unconstitutional.

While it’s very likely the Supreme Court could overturn all Obamacare before the end of this term, I see it as highly unlikely for the following reasons:

  • I don’t know of any conservative law scholar who led a previous Supreme Court challenge to Obamacare who see today’s challenges as credible in terms of benefits. For example, the architect of the latter challenge, Jonathan Adler of Case Western University, said in a court friend briefing that the current challenge is, “not tethered to contemporary law or doctrine.”
  • Those who now argue that the Court is capable of undermining the law seem to believe the Republican-appointed judges are pure partisan political animals marching down Trump’s political line. It reflects a lack of understanding of judges and their dedication to the rule of law. According to the Supreme Court Database, from 2000 to 2018, 36% of all decisions were unanimous. Their 7-to-2 or 8-to-1 decisions make up 15 percent of the decisions. A 5-to-4 decision, by comparison, occurs in only 19 percent of cases. And, in 2019-2020 period, with Gorsuch and Kavanaugh, only 21% of the decisions were taken 5-3 or 5-4.
  • The concern over the Court tampering with the entire law lies in the dubious idea that if individual mandated tax penalties go away, so will broader pieces of law such as the expansion of Medicaid and individual insurance subsidies. The Medicaid expansion, for example, has absolutely nothing to do with the individual mandate originally placed in the law as a means to support the insurer’s ability to cover individual health insurance policies.
  • If judges decide that the whole law should go away, they will force more than 20 million people onto the uninsured list overnight on the dubious premise that the individual mandate cuts, which actually happened in the 2017 tax bill, undermined the overall coverage expansion. It’s hard to see how one would get from eliminating individual credentials, which have effectively been missing for three years, to justify blowing up the coverage of millions in an instant.

But many Democrats now want to paint the picture, if for no other reason that fits into an effective election season argument, that Republicans want to take away your pre-existing condition coverage, your insurance subsidies, and your Medicaid expansion.

And, because Republicans have filed this lawsuit and the White House has backed it, their actions legitimately leave Republicans wide open to the claim. And, it raises the question of why Republicans would do such a stupid thing.

Ironically, Republicans are now moving to blow up the law in court after failing to repeal and replace Obamacare in 2017 (partly leading to their 2018 election loss) and have woefully failed to make any new replacement proposals since.

Fortunately, the Supreme Court is administered by adults and will save Obamacare and the Republican Party from themselves.

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