On the heels of the release of a four page “summary” of the Mueller report by new Attorney General William “Bill” Barr, Donald Trump announced [PDF] in the middle of the night that he would no longer defend the Patient Protection and Affordable Care Act or PPACA, also known as “Obamacare.” The announcement served as a distraction from the Barr letter and spurred outrage on cue that Obamacare was in danger.
People fear that the Supreme Court solidly in the hands of reactionary Republicans including two highly controversial Donald Trump appointees will declare the entire health care law unconstitutional, upholding a recent lower court decision. Rest assured, this will not happen.
The refusal of the Donald Trump administration to defend Obamacare will have no effect on the case. The Court will substitute a selected proxy to handle the argument.
The issue of Obamacare has been to the Supreme Court repeatedly. Each time the Court considered various provisions, and Obamacare continued to exist after each case. Implied in these rulings is the existence of Obamacare is Constitutional.
The same five Justices who implicitly upheld Obamacare through a number of related rulings are still there, including Chief Justice John Roberts, Jr. Although anything is possible, presumably, these five who permitted the law to continue are not going to flip-flop — especially with health coverage being the top issue of the 2018 midterm elections.
There is one thing that could change the outcome of the case: replacement of one of the five Justices who did not vote against the program. But unless or until such a situation arises, the law will be upheld.
Some people are still sore about the withholding of a seat vacated during the Barack Obama administration that was held open without hearings or a vote until the White House occupancy changed. Democratic presidential candidates are seriously considering corrective action to unstack courts. Overturning Obamacare at this late date would increase demands, making it more likely that Republicans would lose their majority on the Court.
RECENT DONALD TRUMP APPOINTMENTS
The refusal to consider Barack Obama’s nominee Merrick Garland was unprecedented in American history. Never before in over 200 years was a popularly elected president denied all “consent” before the next election. History actually was opposite. In the past, unelected presidents were given some form of individualized consent, sometimes even after the president lost the next election, and some nominees were even confirmed the next year — making the 2016 view of the Constitution plainly revisionist.
The Constitution states the president “by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court … ” Barack Obama nominated the individual Merrick Garland “with the Advice” of the Senate. He did his part. Senate Majority Leader Mitch McConnell blocked all activity on the nomination by fabricating a new rule, and left the individual nominee without consent entirely. “Consent” does not mean that a particular nominee must be confirmed or even that there be a vote — it means that the individual be considered. That did not happen. The Constitution says ‘with consent’ — not the opposite — ‘without consent.’
Donald Trump’s selection Neil Gorsuch filled the empty seat. Neil Gorsuch received the benefit of the refusal to consider Merrick Garland, but also ending the filibuster rule to confirm him. Neil Gorsuch gained the deciding seat of the Court, preventing it from being held by a Democratic majority after 47 years straight of Republican control. A slew of 5-4 Supreme Court opinions followed, most or all of which would have come out the other way with Merrick Garland on the Court.
To add further insult and outrage, Donald Trump next nominated Brett Kavanaugh, a known partisan hack who played a part in the impeachment of Bill Clinton then used stolen Democratic emails to game judicial nominations under George W. Bush. Strategically retiring Justice Anthony Kennedy’s family turned out to be longtime associates with the Trump family.
During the Brett Kavanaugh hearings, allegations of attempted rape and other illegal sexual acts came out, but such allegations were given little consideration. The first woman who alleged wrongdoing was given time to testify. No other witnesses were called, and the vote was rushed. In the end, accuser Dr. Christine Blasey Ford was hung out to dry, and Brett Kavanaugh was confirmed in a 50-48 vote.
CHIEF JUSTICE DEFENDS THE COURT
Later, Donald Trump complained about an “Obama judge” after a federal court blocked some of his new immigration policy. John Roberts issued a rare public statement declaring, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
John Roberts was the same Chief Justice who wrote the opinion in the 5-4 case that overruled part of the 1965 Voting Rights Act reintroducing a new era of extreme voter suppression, the 5-4 opinion upholding the ‘Muslim ban,’ and joined with Neil Gorsuch to support a stunning number of dubious 5-4 decisions just last term.
WHY SPEAK OUT NOW?
Why would John Roberts suddenly decide to speak out publicly?
First, the credibility of the Court is already in question after the Neil Gorsuch and Brett Kavanaugh appointments, and especially with the balance of the Court perverted to remain in Republican hands after nearly 50 years straight and continuing indefinitely.
Second, John Roberts may undermine movements to change or unstack the Court now that so many defects have been exploited. If the Court were seen as legitimate as before recent exploits (and even the 2000 case where an unsigned 5-4 opinion ended the Florida vote count and decided the winner of the election), John Roberts would not feel the need to speak out and break his usual practice.
OUTRAGE AS A POLITICAL TACTIC
It is no secret that outrage is a major tactic in 21st Century politics. The threat against Obamacare is exactly such a tactic. Here’s how it works: Generate fear and outrage at the failure of Donald Trump to defend Obamacare for the next year or more. When the case gets to the Supreme Court probably right before the 2020 election, the Court upholds the act.
The balloon of fear and outrage deflates, media declare once again that the Court is “fair” and “objective” and “above politics.” Movements to repair the fundamental flaws in the selection of Justices shrink. Meanwhile Republicans continue to hold the majority, reverting jurisprudence to before the New Deal era to less media notice. The Court continues to create and expand new “originalist” doctrines like “corporate personhood,” rights to censorship as free speech, and rights of religious stock certificates to excommunicate Americans from employment and consumption establishments. The fear should not be that Obamacare will end, but rather, what comes after it is upheld.
ALTERNATE REPUBLICAN PLAN
Finally, just to mention, Donald Trump appears to be trying to convince Democrats to “repeal and replace” Obamacare using a scare that the Supreme Court will overturn it. Play this out:
- Democrats and Republicans join together to replace Obamacare before the 2020 election, making Donald Trump and Republicans look good for political purposes.
- With Obamacare gone, the Supreme Court case becomes moot and no decision is needed, thereby preventing political fallout before the election.
- After 2020, the new law reaches the Supreme Court, which could throw the new law out without blatantly violating its recent Obamacare opinions. Mission accomplished.
- This strategy gives Republicans what they want, reduced health coverage, and does so without undermining Republicans in 2020.
- After the election, Republicans point the finger at Democrats for repealing Obamacare.
This may seem crazy, but there is an historical pattern. Richard Nixon claimed to be against the Vietnam War then once in office he expanded the war. Ronald Reagan railed upon the national debt then increased it three-fold. George Bush ordered a “kinder, gentler nation” then began the Middle East quagmire that continues to this day, and Donald Trump said he would not cut Medicare but his new budget orders massive cuts. Big promises broken.
POSTSCRIPT: HISTORY OF AFFORDABLE CARE ACT
The Affordable Care Act was the centerpiece achievement of the Barack Obama administration, providing guaranteed ‘essential benefits‘ for all insured Americans, including coverage for preexisting conditions and reproductive care for women, increasing the percentage of the population covered, and covering costs through raising taxes and creating an “individual mandate.” Obamacare extended the fully funded period of Medicare twelve years from 2017 to 2029 [PDF].
Republicans tried to shut down the program. As the original 2010 Act was designed to roll out over the next few years, Republicans flurried to courts to defeat the program before full implementation would turn it into another “third rail” of politics — a popular program that nobody would dare oppose, just like Social Security or Medicare.
The first big bite out of the program came in a highly divided and controversial Supreme Court opinion where a 5-4 majority upheld the “individual mandate” under federal taxing power while a 7-2 majority rejected mandatory Medicaid expansion into the states under the Commerce Clause.
This created a sort of worst-of-both-worlds result as Americans were required for the first time to buy a product merely for existing or face a penalty. Such a product purchase precedent could be used in the future to privatize Social Security, forcing retirement funds into an ever-inflating stock market that inevitably would crash when seniors pull their money out. Ironically, the mandate was repealed anyway.
The Act originally required states to expand Medicaid or lose other Medicaid funding, but this was found unconstitutional, thereby permitting states to refuse to expand coverage and deny millions of Americans from gaining insurance. “Red” states took advantage of the ruling and refused the expansion even though the federal government would pick up the entire tab in the early years and most of it later on. Republicans essentially punished state residents even though state budgets were not harmed, then turned around and used the lack of coverage as a political tool to oppose Obamacare and Democrats generally.
In the Senate, Republican Marco Rubio of Florida sabotaged the program by cutting funding in a must-pass omnibus bill, which caused premiums to rise. Higher rates were also used as a political tool to build outrage against the program. Less often, some pointed out that the rate of increase in the Obama years was less than in the Bush years [PDF] even with the sabotage.
By 2018, with some 16 million people on the Medicaid expansion and over a hundred million more receiving extended benefits, popular opinion turned to support the program exactly as Republicans had calculated. But now, it was too late. In the 2018 election, health care was the top issue.