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The Ruling Striking Down Obamacare Is a Disaster for Republicans

When a judge said the Affordable Care Act was unconstitutional, it was technically a victory for conservatives, but not the kind of victory they want.
December 17, 2018, 6:39pm
A pro-Obamacare protest sign.
A pro-Obamacare protest in DC in 2017. Photo by Drew Angerer/Getty

On Friday evening, a federal judge in Texas issued a ruling that landed like a lighting bolt: He decided that thanks to Congress last year reducing the Affordable Care Act's (ACA) tax penalty on people who didn't buy health insurance to zero, the entire law was now unconstitutional. The ruling was promptly derided by many experts (including some on the right) for being overly broad, and it was expected to be struck down by higher courts; the ACA remained in place while the case was appealed. But the sudden resurgence of existential danger to "Obamacare," however fleeting it will ultimately prove, showed that healthcare remained one of country's central political conflicts, and that the decade-long battle over Barack Obama's signature law was far from finished.


That should worry Republicans.

Judge Reed O’Connor was ruling on a lawsuit brought by Republican state attorneys general. They argued that the zeroing out of the penalty for not having insurance, tucked into the Republican tax cuts last year, invalidated a 2012 Supreme Court ruling that requiring people to buy health insurance was a constitutional use of the federal government's tax power. These attorneys general also argued that because the mandate was such an integral part of the ACA, the whole system—including protections for people with preexisting conditions and the expansion of Medicaid—should be wiped out. That O'Connor agreed with them was a win, but only in the dog-catching-the-mail-truck sense. On Saturday, Donald Trump called it a "big big victory," and added, "We will get great, great health care for our people… We’ll have to sit down with the Democrats to do it, but I’m sure they want to do it also.”

Trump routinely promises vague improvements to healthcare. But in practice, his administration has worked to sabotage the Obamacare markets so fewer people would sign up for insurance, part of a long effort by the GOP to chip away at the law's regime through lawsuits, legislative tweaks, and executive branch action. Even so, last year's effort to repeal the whole thing foundered in the Senate and was unpopular with the public to boot.

Since then, Republican positions in the healthcare debate have been murky at best, and fraudulent at worst. During the midterm elections, Democrats largely ran on healthcare, making preservation of the law and the millions of people it had helped a top campaign issue. Meanwhile, Republicans insisted they were for the popular parts of the ACA, preexisting condition protections in particular, even as they supported efforts to weaken or eliminate those same protections. They say they want to end Obamacare, but haven't been able to come to terms, at least in public, about what that end would mean.


So in the wake of what was on paper a victory in court, Republicans not named Donald Trump hardly celebrated. US Senator Roy Blunt on Meet the Press made sure to note that the ruling had “no immediate impact" while saying that he supported plans to provide "more options, more choices, more access to insurance that really meets people's needs, things like the associated health plans, that allow people in small businesses to band together."

If that doesn't sound like much of a replacement for the ACA, it's because it isn't—it's a tired talking point Republican presidential candidates were using a decade ago. And while Republicans are now calling for some kind of compromise legislation, it's unclear what that would look like in practice. The GOP has been relentlessly partisan on healthcare, famously writing the ACA repeal bill largely in secret with no Democratic input. A bipartisan proposal last year from senators Lamar Alexander and Patty Murray was widely praised as being a way to stabilize the healthcare law's marketplaces, but it ultimately went nowhere in a Republican-dominated Congress. (That sort of tinkering around the edges is unlikely to satisfy a conservative base that's been fed a steady diet of hysterical anti-Obamacare talking points for years.)

Democrat Nancy Pelosi, who will likely soon take over as speaker of the House, has promised to get involved with the appeals process in an effort to protect people with pre-existing conditions. If Republicans oppose that, it'll be harder than ever for them to argue, as they have been doing, that they care about those protections. And if Republicans want concessions in exchange for those protections, what would they be? Calls to cut Medicaid are bound to be met with boos, given that Medicaid expansion has proved popular even in red states. Other recent Republican healthcare ideas include restructuring subsidies so they benefit older people rather than poorer ones, and allowing people to buy "skinny" healthcare plans that don't provide much coverage and could drive up the cost of comprehensive plans as sick people become the only ones who buy them.

Essentially, GOP health reform proposals seem likely to make coverage more expensive for the poor and the sick. That might be why Americans tend to trust Democrats more than Republicans on healthcare and why Obamacare now has a positive approval rating—the alternatives conservatives are proposing are genuinely scary, or else just don't make any sense.

Whether they admit it or not, some Republicans were likely hoping for the Texas court ruling to be reversed quickly and definitively. If the Affordable Care Act is disrupted and Congress has to fix the system, it will force a protracted a public debate where all of the GOP's unpopular ideas about healthcare are front and center. And if they decided to pass legislation restoring Obamacare's provisions, they'd be admitting to themselves and the country that they never had anything to replace the law with.

You might think with so much bad news about the president's henchmen facing prison time these days that the GOP would welcome an actual policy debate. But if the national conversation becomes all about conservatives' healthcare plans, they may start wishing people would go back to asking whether their president is a criminal.

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