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The warped and twisted logic Republicans are trying to use to rip health care away from millions

January 19, 2019 San Francisco / CA / USA - Participants to the Women's March event carry "Healthcare for all" sign while marching on Market street in downtown San Francisco

To understand the stakes and debates around the current fight to tear down the Affordable Care Act — otherwise known as Obamacare — you must be able to wrap your head around the twisted the logic that Republicans are using in court.


At the center of the legal battle is the infamous "individual mandate," the piece of Obamacare that required Americans to purchase health insurance. Advocates for the law backed this provision because of a collective action problem. They feared that without the mandate, too many people would opt to go without health insurance and make the system worse for everyone.

Some claimed this provision was unconstitutional. But in the Supreme Court case National Federation of Independent Business v. Sebelius, Chief Justice John Roberts concluded in an opinion for the majority that the mandate was a permissible application of Congress' taxing power. If you didn't get insurance under Obamacare, you had to pay several hundred dollars extra in your taxes — that's how the mandate was enforced. Roberts decided this was legitimate.

If the question has been settled by the Supreme Court, why is it back at the center of a new lawsuit? That's where things get really warped.

In 2017, the Republican-led Congress was unable to get the votes to repeal either all of Obamacare or the mandate itself. However, because of technical rules in the Senate, they were able to set the penalty for not complying with the mandate to zero. On Roberts' understanding of the mandate, it has been effectively repealed. If the federal government passed a lot setting all income taxes to zero, no one would argue that there was a still an income tax.

Legal scholar Eric Segall, a professor at Georgia State University, told me simply that the 2017 change "makes the Constitutionality of the mandate/tax irrelevant. Since that Congress didn’t repeal the rest of [Obamacare], neither should the Court."

But Republicans argue the opposite. They say that since the law still requires Americans to buy insurance without a penalty, it can no longer be considered a tax. Therefore, to their minds, since it can no longer be upheld as constitutional under Congress's taxing power, and it should be struck down.

It gets even worse and more bizarre.

The Republican state attorneys general who brought the case, as well as the Justice Department, have argued that the mandate should be struck down — and the rest of the Obamacare should fall with it. Judge Reed O'Connor, a federal judge in Texas, agreed and did just that, sending the case to the Fifth Circuit. His ruling stunned even many conservative legal commentators.

Obamacare is a vast and complex law, and knocking it down would be monumentally disruptive. Tens of millions of people get their health care through its provisions — largely through its expansion of Medicaid and through the private health insurance marketplaces the law set up. Knock down the law, and many people could find themselves without coverage. Even for those who retain coverage, the consequences to the change in the law would be unpredictable, because there's no telling how insurers would react to the shift.

On Wednesday, the Fifth Circuit upheld O'Connor's finding that the mandate is unconstitutional — but it sent the case back to him to re-examine the question about whether the mandate could be "severed" from the rest of Obamacare. If he determined that the mandate could be severed, he would be able to strike the mandate from the books, but it would have few if any practical implications.

Nicholas Bagley, a law professor at the University of Michigan, warned that observers shouldn't be reassured by the court's new ruling.

"Yes, the court remanded without deciding how much of the ACA had to go. Yes, the court said it's possible that the mandate could be fully severed," he said in a tweet. "But don't buy it. The writing is on the wall."

He continued: "The court could easily have said that the mandate is fully severable, if it thought it was. But it didn't. The court could have announced that only community rating and guaranteed issue have to go. But it didn't."

His conclusion? The circuit court is "perfectly OK if Judge O'Connor strikes down the most significant parts of the ACA."

Of course, if that happens, the Supreme Court will almost certainly take up the case eventually. There's one benefit for Republicans, though, of the case being sent back down to the O'Connor. It stretches out the timetable for coming to a resolution. That may mean the final decision isn't made — and the disruption of the health care markets doesn't emerge — until after the 2020 election. If, for example, the Supreme Court were to knock down all of the ACA in the summer of 2020, it would likely be a devastating blow to President Donald Trump's re-election campaign. The disruption in health are would almost certainly be blamed on Republicans. If the decision can be put off, Trump stands a better chance of retaining power.

It's not certain, though, that even if the circuit court and O'Connor decide to strike down much of the law that the Supreme Court will concur. While four of the conservatives on the high court might be inclined to gut Obamacare, Roberts has repeatedly been willing to save it before. It would be surprising, then, if he took this opportunity to throw the law out, especially when such a ruling would be in obvious tension with his previous conclusions about the validity of the mandate. And the justification needed to strike down the rest of Obamacare requires some additional and extreme mental gymnastics.

But this is, in many ways, the conservative vision. The reason they care so much about stacking the courts with conservative judges and justices is so they can knock down laws that Republicans hate, even if they're popular with voters. And it's even better if, as may be happening now, they can time the most significant rulings to avoid an extreme electoral backlash for the GOP.

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