Be Careful What You Wish For

 
GOP Congressional Republicans voted over 60 times to repeal the Affordable Care Act (ACA, also: Obamacare). The last big GOP-initiated repeal vote ended with a big “no” from the late Arizona Republican Senator, John McCain, to Donald Trump’s total consternation. But Trump has been hacking away at the ACA by having the Department of Health and Human Services (HHS) issue “exemptions” to states that allow their ACA exchanges to issue “skinny bundles,” policies with very limited coverage for hard dollar amounts and only for the approved ailments and procedures listed in the policy. By not using the words “excluding” or “capped at,” HHS was hoping to get around the ACA’s prohibition against excluding pre-existing conditions or imposing annual or lifetime caps on coverage. Courts have repeatedly thrown out these thinly disguised efforts to circumvent the ACA’s plain meaning.

But on December 14^th Donald Trump got the gift that he hopes keeps on giving – a huge benefit to those seeking ways to reduce that massive federal budget deficit he created by signing that tax reform package to benefit only the richest in the land. A George W. Bush appointee to a federal Northern Texas District Court, Judge Reed O’Connor, ruled that the entire ACA was now unconstitutional. Trump was overjoyed, tweeting: “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster!” Even though the court did not issue an injunction to force his ruling to take instantaneous effect, the nineteen red state attorneys general who filed the suit (Texas vs United States of America) were ecstatic.

Ignoring earlier Supreme Court rulings that kept most of the ACA intact, O’Connor stated that once the individual mandate that funded the program was eliminated, the entire ACA was effectively defunded. Noting he believed that Congress had stated repeatedly that such mandate was “essential” to the bill, O’Connor ruled: “Because rewriting the ACA without its ‘essential’ feature is beyond the power of an Article III [which defines the powers of the federal judiciary] court, the Court thus adheres to Congress’s textually expressed intent and binding Supreme Court precedent to find the Individual Mandate is inseparable from the ACA’s remaining provisions.” Effectively, misreading the Supreme Court’s earlier rulings on the ACA, O’Connor is saying that courts lack the power to fill in the blanks to make the law work without that Individual Mandate (“inseverable”), a power which he believes can only reside with Congress.

Republicans won at last?! Define “winning.” The blue wave victories in districts that typically voted red were in significant part a reflection of blue-collar and other middle-level workers who were terrified that they would lose their healthcare under a GOP-controlled House of Representatives. With an estimated 130 million Americans suffering from those pre-existing conditions, 25 million of them between 50 and 64, the Republicans seem to be getting hanged by their deeply anti-universal healthcare efforts since the 2010 bill became law.

To recapture that base, many GOP-congressional candidates had been campaigning to fix the flaws in the ACA. This court is telling them they have to start from ground zero, when everyone knows that, to date, the entire GOP has failed to offer any meaningful alternative to the ACA. With a new Democratic majority in the House, to move forward, the GOP is forced to deal with the Democrat’s healthcare objective: extending a program that literally creates Medicare for all, a platform that is highly offensive to traditional conservatives. Or their constituents will have another follow-up vote in 2020.

Remember, the ACA was a Democratic solution, which had been working despite Trump’s efforts to sabotage that law. Republicans must be sweating bullets, even as the President is threatening to shut down that part of the government that is not already funded (about a quarter of the federal workforce) if he does not get a specific allocation of $5 billion for this most-unpopular “Mexico will pay for it” wall. Trump appears to be overplaying his hand at a time when he faces the greatest challenges of his presidency. This could force even more Republicans to distance themselves from a weakening president.

If O’Connor’s ruling is not reversed, the list of horribles from an end to the ACA without a comparable replacement – and the Republicans do not have any replacement legislation – includes: “As many as 17 million people could lose their coverage in a single year. The 15 million people covered under Medicaid expansion could lose their coverage. The improvements to Medicare that have saved the program billions of dollars—and reduced prescription drug costs for seniors—would be erased. Young people wouldn't be able to stay on their parents' insurance until they're 26. The ban on annual and lifetime caps would be gone, and medical bankruptcies would escalate. Having lady parts would again cost women more than men, and being over age 50 would cost everyone more again. Limits on out-of-pocket costs would be gone. The tax credits that 9 million people are receiving to help them pay premiums would be gone.” DailyKos.com, December 17^th.

Is this an opportunity for the Democrats? They are letting the GOP know they are ready to act… now. Senate Minority Leader, Democrat Charles Schumer, was interviewed on the December 16^th Meet the Press on NBC: “We're going to fight this tooth and nail… And the first thing we're going to do when we get back there in the Senate is urge, put a vote on the floor, urging an intervention in the case. […] A lot of this depends on congressional intent, and if a majority of the House and majority of the Senate say that this case should be overturned, it will have a tremendous effect on the appeal.”

Incoming House Speaker, Democrat Nancy Pelosi, tweeted after the ruling: “Tonight’s absurd ruling exposes the monstrous endgame of the GOP’s all-out assault on people w/ pre-existing conditions & the ACA. When @HouseDemocrats take the gavel, the House will swiftly intervene in the appeals process to #ProtectOurCare!” One of her aides added: “We will ... put all House Members on record and send a clear message to the court that the House as a body endorses defending the Affordable Care Act and its protections for people with pre-existing conditions," Politico.com, December 14^th. Uglier got a whole lot uglier, but if Americans start losing coverage, if medical bankruptcies soar, the 2020 election is less than two years away. Death, pain and agony are not good political visuals.

              I’m Peter Dekom, and I am wondering if the GOP doesn’t backtrack soon, could this effort be the political equivalent of Custer’s last stand?