Thursday, as newly diagnosed coronavirus cases smashed previous daily records, the Trump administration asked the Supreme Court to please invalidate the entire Affordable Care Act, because nothing spells electoral victory like arguing for taking healthcare away from 23 million Americans during a pandemic. But yesterday was the deadline for the White House to submit a brief in the case, so an hour before time expired at midnight, the administration got its homework in, siding with the lawsuit filed by Texas and 17 other Republican-run states in arguing that the entire law must be thrown out for reasons that legal experts have called really fucking stupid. Although they tend to dress it up in more lawyerly terminology, like "If it please the court, this is really fucking stupid."


The argument, as we've outlined previously here and here, is that when Republicans zeroed out the tax penalty for not having health insurance — the individual mandate — as part of the 2017 tax cut bill, that secretly undid the entire ACA. The reasoning, such as it is, goes like this: When the Supremes upheld the ACA in 2012, the Court held that the law was constitutional, because Congress has the authority to levy taxes. The individual mandate, which taxed anyone who didn't have health insurance, was a tax, and therefore the law was A-OK.

So Texas and the other Republican states claim that without that tax, the entire law falls apart. In December, the Fifth Circuit Court of Appeals held that a $0 penalty can't be considered a tax, and since the entire constitutional case for Obamacare was based on its being a tax law, the whole law goes "poof" into nothingness. Not just the portions involving the individual mandate, but all the other stuff too, like Medicaid expansion, the provision letting children stay on their parents' insurance until they're 26, and of course the protections for people who have preexisting conditions. As our Jamie Lynn Crofts put it last year, "A change Republicans made to the law is, Republicans argue, reason to strike down the law Republicans changed."

Again, there's no shortage of legal scholars, including right-leaning people who don't support Obamacare one bit, who find that argument some specious fucking bullshit. Libertarian legal scholar Jonathan Adler, who's no fan of Obamacare and has supported other lawsuits against it, said in 2018, as the case was first being heard in federal court, that just because Congress in late 2017 reduced the tax penalty, that has no effect on the rest of the law. If Congress had intended to kill the entire program, it would have to actually repeal Obamacare, which as you may recall from all of Trump's first year in office, it didn't manage to do.

The New York Times explains the Supremes have

agreed to consider three legal questions in the case: whether Texas and two individual plaintiffs who have joined the suit have standing; whether Congress rendered the individual mandate unconstitutional; and, if it did, whether the rest of the law must fall with it.

If the court strikes down only the mandate, not much will change, according to an analysis by the Kaiser Family Foundation, which wrote that the "practical result will be essentially the same as the A.C.A. exists today, without an enforceable mandate." But if the court decides that all or part of the law must be overturned, it would affect "nearly every American in some way," the foundation wrote.

While the Court hasn't yet scheduled oral arguments in the case, the Times says they'll likely be heard sometime this fall, right in time for Americans to be paying attention to the presidential election, and for that matter, assessing whether they want to return a majority of Republicans to the Senate. The Times quotes GOP strategist Joel White, who recently said he thought it was"pretty dumb to be talking about how we need to repeal Obamacare in the middle of a pandemic."

Ya think? Not that there's a particularly good time to eliminate healthcare for 23 million Americans, but maybe if it happened during the Super Bowl nobody would notice because of the funny beer advertisements. Also, let us remind you one more time that for all their "repeal and replace" sloganeering, Republicans have never, not once, ever had a real plan to replace the ACA. It's always just something that will be terrific and stupendous and much better than Cats, but no, they don't have any specifics.

In a statement today, White House spokesperson Judd Deere said there's never a bad time to eliminate something Barack Obama did, because it's such a clearly illegal failure and nobody likes it with all those socialist cooties on it, ew.

"It limits choice, forces Americans to purchase unaffordable plans, and restricts patients with high-risk preexisting conditions from accessing the doctors and hospitals they need," Deere said. He added that the president has sought to improve health care by cutting red tape to allow more choice and called on Congress to work with the administration to make further changes.

Before anyone could ask how the hell eliminating all protections for patients with preexisting conditions would somehow be an improvement, Deere flinched, stared intently at reporters, and bounded away into the deep woods. He startles easily.

Democrats retook the House in 2018 thanks in large part to anger at Republican attempts to gut Obamacare and make jerky out of it, so it should be no surprise Dems plan to make this latest threat to the ACA a central part of the fall campaign. House Speaker Nancy Pelosi has already scheduled a vote for Monday on a bill that would strengthen Obamacare, because unlike Donald Trump, she is not stupid. In a statement Thursday, Pelosi said,

"President Trump and the Republicans' campaign to rip away the protections and benefits of the Affordable Care Act in the middle of the coronavirus crisis is an act of unfathomable cruelty." [...]

"If President Trump gets his way," she added, "130 million Americans with pre-existing conditions will lose the A.C.A.'s lifesaving protections and 23 million Americans will lose their health coverage entirely.

Republicans, on the other hand, are so excited by the prospect of backing up their party's lawsuit against the ACA that Ted Cruz spent last night yelling at women in a country western band, and Donald Trump insisted that he must be reelected, because he will never ever make a verbal slip like Joe Biden recently did. (He said 120 "million" Americans had died of COVID-19, which is far worse than letting 120,000 Americans actually die like Trump has.)

We don't mind if Biden occasionally says "million" when he means "thousand," especially when it's clear what he meant. At least he'll never say "I'm protecting people with preexisting conditions" while demanding millions of people lose all such protections.

[NBC News / NYT]

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Doktor Zoom

Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.

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