Trump’s Supreme Court May Save Obamacare

By Yuval Rosenberg

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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