Trump’s Supreme Court May Save Obamacare

Trump’s Supreme Court May Save Obamacare

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Plus - Avoiding a December shutdown
Tuesday, November 10, 2020

Supreme Court Signals Support for the ACA

The Supreme Court heard arguments in a Republican challenge to the constitutionality of the Affordable Care Act Tuesday, and while we won’t know the court’s ruling until next spring, most observers concluded that a majority of justices appear to favor upholding the 2010 health care law.

“[A]t least five justices, including two members of the court’s conservative majority, indicated that they were not inclined to strike down the balance of the law,” The New York Times said in its review of the proceedings.

The legal claim: A lawsuit filed by Republican officials in 18 states and backed by the Trump administration claims that the Affordable Care Act violates the Constitution now that the individual mandate — the tax penalty for not purchasing health insurance — was set to $0 by Congress as part of the GOP tax package in 2017.

The lawsuit contends that the mandate was an essential part of the ACA, and now that it has been effectively eliminated, it should be formally eliminated — a move they say would invalidate the entire law, based on an earlier Supreme Court ruling that backed the ACA by tying the mandate to Congress’s taxing powers. While there are other legal issues involved, the “severability” claim is central to the case, though it has been widely criticized by legal experts across the political spectrum.

What the justices said: The proceedings Tuesday were the first time the court has heard a challenge to the ACA with its new 6-3 conservative majority, and there was considerable speculation that the newest justice, Amy Coney Barrett, would tip the scales against the law. But Coney Barrett showed few signs of accepting the Republican argument, and instead asked why the court should ignore the will of Congress by overturning the law.

Chief Justice John G. Roberts Jr. said that it was clear that lawmakers did not intend to undo the ACA in its entirety when they effectively eliminated the mandate. “I think it’s hard for you to argue Congress intended the entire act to fall if the mandate was struck down if the same Congress that lowered the tax penalty to zero did not even try to repeal the rest of the act,” he said. Roberts added that while the challengers were hoping that the court would invalidate the ACA, “that’s not our job.”

Justice Brett Kavanaugh also expressed doubts about the Republican claim. “I tend to agree with you this a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place,” Kavanaugh said.

The court’s liberal justices — Stephen Breyer, Elena Kagan and Sonia Sotomayor — also made clear their skepticism about the suit’s claims, questioning multiple components of the case, including issues surrounding standing and precedent.

What’s at stake: Republicans have sought to undo the Affordable Care Act since it passed in 2010, making “repeal and replace” a rallying cry for conservatives throughout the Obama and Trump years. But the law has become deeply interwoven with the American health care system since taking effect in 2014, and most experts say that removing it would cause chaos. Among other things, roughly 20 million people could lose their health insurance in one fell swoop, and Americans would lose legal protections for people with pre-existing conditions.

What others are saying: President-elect Joe Biden blasted the Republican effort to overturn the ACA, calling it “simply cruel and needlessly divisive,” especially in the middle of a pandemic. “Let's be absolutely clear about what's at stake: The consequences of the Trump administration's argument are not academic or an abstraction. For many Americans, they are a matter of life and death, in a literal sense,” Biden said.

Larry Levitt of the Kaiser Family Foundation said that one likely outcome of the case is that the Supreme Court could throw out the now-toothless mandate but leave the rest of the ACA standing. “That remains possible, and would avoid disrupting insurance for millions of people,” Levitt said Tuesday. “If the Supreme Court does allow the ACA to stand, except for the individual mandate, it seems like the law is really now here for good with President-Elect Joe Biden taking office.”

Quotes of the Day

“What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change. He went golfing this weekend. It’s not like he’s plotting how to prevent Joe Biden from taking power on Jan. 20. He’s tweeting about filing some lawsuits, those lawsuits will fail, then he’ll tweet some more about how the election was stolen, and then he’ll leave.”

– An unnamed senior Republican official, as quoted by The Washington Post in a piece detailing how Republicans have lined up behind President Trump in his efforts to contest his loss to President-elect Joe Biden.

“There will be a smooth transition to a second Trump administration.”

Secretary of State Mike Pompeo, after being asked Tuesday if his department is preparing to work with the Biden transition team and whether a delay could hamper the transition or pose risks to national security.

“They will. They will.”

– Biden, at a news conference Tuesday, when asked how he expects to work with Republicans when they won’t even acknowledge him as president-elect.

Senate Republicans Unveil Spending Bills to Avoid December Shutdown

Senate Republicans released their long-delayed annual spending bills on Tuesday, setting the stage for what may be complex negotiations with Democrats ahead of a December 11 deadline, when current stopgap government funding is set to expire.

The 12 appropriations bills “reflect significant differences between Senate Republicans and House Democrats on spending levels as well as policy riders that address everything from family planning grants to military installations named for Confederate officers and border wall funding,” Roll Call’s Jennifer Shutt reports:

“Senate Republicans made some strategic reductions from bills introduced by their House Democratic counterparts to fund the departments of Veterans Affairs, Interior, EPA, Transportation and Housing and Urban Development.

“Instead, they'd put that money towards higher levels for Defense, Homeland Security, Energy and the Army Corps of Engineers than the House would prefer.

“Senate Republicans appear to give the biggest domestic spending bill, for the departments of Labor, Health and Human Services and Education, more money than the House version. But that's before the addition of $24.4 billion in pandemic-related emergency spending House Democrats tacked on, part of a nearly $250 billion overall pot of add-ons sprinkled throughout the bills Republicans say violate last year's budget deal.”

The background: An earlier deal between the Trump administration and Congress set the discretionary budget for fiscal year 2021 at $1.298 trillion, with $671.5 billion for defense and $626.5 billion other programs. House Democrats passed 10 of the required 12 annual spending bills along partisan lines earlier this year.

Democratic objections: Sen. Patrick Leahy of Vermont, the top Democrat on the Senate Appropriations Committee, quickly raised some objections to the new Republican bills, including the lack of emergency pandemic-relief funding.

“Many of the bills were the result of bipartisan work, and I appreciate those areas where we were able to come to agreement,” he said in a statement. “However, there are significant issues that we will want to address in negotiations with the House. The first is the need to address the coronavirus crisis in this country.”

Leahy also objected to what he called “nearly $2 billion in wasteful spending” on Trump’s border wall; proposed spending levels for health, education, child care and environmental protections; language limiting funding for family planning; and funding levels for immigration detention.

Uncertainty abounds: The ongoing uncertainty over which party will control the Senate, with two Georgia seats slated for runoff elections on January 5, could color the negotiations, as could the stalemate over a coronavirus relief package. Democrats, guided by President-elect Biden, may also prefer not to pass full-year funding bills, instead giving the new administration a chance to put its stamp on spending priorities. But the likelihood that Republicans will control the Senate after those runoffs may give Democrats more incentive to settle the spending bills and clear the decks for Biden.

Trump again a wild card: The president, always unpredictable, could further complicate the talks, through both his efforts to challenge the election results and potential objections to the process or details of the legislation. “Whether President Donald Trump’s lame-duck administration will engage in those negotiations, or whether he’ll want to sign any spending bills, period, remains unknown,” Roll Call’s Shutt writes.

The White House has reportedly instructed officials not to cooperate with the Biden transition team and Trump’s budget office has told federal agencies to continue preparing the administration’s budget proposal for fiscal year 2022, which begins next October. The president’s budget would typically be released in February, weeks after Trump is scheduled to leave office. Asked by The Washington Post if the fiscal 2022 budget process was proceeding as planned, a spokesperson for the White House budget office said, “Of course.”

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