Susan Collins says she opposes the DOJ's effort to overturn Obamacare. Her votes are the reason it's happening

News & Politics

The multi-state lawsuit against the Affordable Care Act threatens to overturn the law in its entirety — protections for pre-existing conditions, subsidies, marketplace exchanges, Medicaid expansion in 37 states and D.C., the right for kids to stay on their parents' plans until age 26, reforms to Medicare, all of it. Tens of millions of people could lose their coverage, and health insurance markets could be destroyed. And in an almost completely unprecedented move, President Donald Trump's Department of Justice has advised federal courts to uphold the decision, waging war against a law the administration is tasked with enforcing.

Sen. Susan Collins (R-ME), who casts herself as a supporter of health care rights, wants everyone to know she is troubled by this development. On Tuesday, she told Bloomberg reporter Steven Dennis she plans to write a letter to Attorney General William Barr urging him to "reconsider" his decision and defend the ACA as constitutional in federal court.

Is she serious?

The fact is, this lawsuit came to be — and has a slim chance of passing — thanks to a series of right-wing laws and appointments made over the last two years that Collins enthusiastically supported.

To begin with, the whole basis for this lawsuit stems from the Republican tax law passed in late 2017, which granted gigantic tax cuts for corporations and billionaires. One of the other things it did was zero out the individual health insurance mandate, which previously required uninsured individuals to pay a small penalty if they didn't get covered. Collins supported this — despite health policy experts warning it could destabilize markets — by promising that Senate Majority Leader Mitch McConnell (R-KY) would call up a vote on her "reinsurance" bill. He never did.

The multi-state lawsuit, led by Texas Attorney General Ken Paxton, is based on the repeal of the individual mandate that Collins voted for. Since Chief Justice John Roberts upheld the mandate under Congress' taxing power, the lawsuit argues, and since there no longer is a tax, the whole law has to be found unconstitutional.

To be clear, legal experts both on the left and right think this lawsuit is ridiculous — a $0 mandate being unconstitutional wouldn't invalidate the whole law, and Congress clearly did not intend to make the mandate non-severable when they repealed it. But the fact that the DOJ itself is siding with the plaintiffs gives the lawsuit a better chance at succeeding — and it just so happens that Collins also voted for both of the attorneys general presiding over the DOJ as they support the lawsuit: Barr, and his predecessor Jeff Sessions.

To be fair, Barr was reportedly opposed to the Trump administration's recent decision to file a brief supporting the lawsuit in its entirety (previously, the administration had only supported striking down pre-existing conditions but leaving the rest of the law intact.) But the alleged mastermind who advised Trump to force Barr and the DOJ to do this was White House Chief of Staff Mick Mulvaney. And when Mulvaney was first nominated to the administration, as director of the Office of Management and Budget, guess what? Collins voted yes.

Finally, of course, the lawsuit wouldn't have a prayer if it were being considered by fair and objective federal judges. Enter Neil Gorsuch and Brett Kavanaugh, the hard-right Republican partisans Trump appointed to the Supreme Court, who — if the lawsuit is upheld at the Fifth Circuit — will play a role in deciding the lawsuit's fate. Collins voted for both, and gave a long-winded Senate speech in which she doubted Kavanaugh would ever invalidate the ACA.

She should hope that the lawsuit doesn't make it that far.

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