Obamacare Arguments Put Supreme Court And Health Care In Presidential Election Spotlight


The Supreme Court agreed Monday to once again become the decider on the future of Obamacare — the controversial law that has become a fabric of society for the millions of Americans who have come to rely upon it.

But the justices ensured something else as well. They guaranteed that over the next several months, as the presidential election rages on and legal briefs flood the zone, the fate of the law and the court will be front and center during the campaign.

The court had options. It could have taken up the case this term, and put the issue to rest by the end of June. It could have allowed the case to continue for months or maybe even years in the lower courts, delaying Supreme Court action until next year or beyond.

President Donald Trump will likely use the case to remind conservative voters of the importance of the Supreme Court as part of his reelection bid.

Democrats, meanwhile, will vigorously highlight the Trump administration’s legal argument: a law that protects individuals with pre-existing conditions should be invalidated by a court bolstered with two of Trump’s nominees: Neil Gorsuch and Brett Kavanaugh. And while the President has vowed to come up with a replacement plan, so far he has not.

“Regardless of the date of oral argument, the Democratic candidate will — and should! — use this case to bludgeon President Trump at every turn,” Nicholas Bagley of the University of Michigan Law School tweeted.

What’s still unknown is whether arguments will be scheduled before Election Day on November 3. Under normal circumstances, a case granted this early for the following term could be a contender for October arguments. But the significance of that would not be lost on justices eager to avoid the political fray.

Brian Fallon, who runs a group, Demand Justice, that opposes Trump’s judicial nominees, underscored the point.

“A Supreme Court oral argument about the future of Obamacare, possibly in October right before the election, will put Trump’s plan to throw millions off their insurance front and center and make Supreme Court voters out of millions of people,” he tweeted.

Former Vice President Joe Biden echoed that argument.

“This fall, Donald Trump will be trying to get the Supreme Court to strike down Obamacare — ripping health insurance away from 30 million Americans, ending protections for 100 million more with preexisting conditions, destroying families, and costing a million jobs,” the Democratic presidential contender said in a statement. “This case is a stark, life-and-death reminder how much is at stake this fall and what’s on the ballot right now: Democrats must nominate the candidate whom they know can beat Trump and bring along the Senate, to ensure we can protect our health care for generations to come.”

Democrats even whipped up an impromptu rally — scheduled within an hour after the court’s decision to take up the case. Such rallies usually only occur on decision days or argument days.

In its usual tantalizing manner, the Supreme Court provided no information as to which justices agreed to hear the case. It would have taken at least four. It could have been the four liberals, dismayed with a district court ruling that invalidated the entire law and a federal appeals court that some think punted on the fate of the entire law to avoid an election year decision. Or was it the same five justices (the liberals plus conservative Chief Justice John Roberts) who all voted to uphold the law in 2012. Those five are still on the bench after all.

Which leaves Roberts front and center, again. He was eviscerated by conservatives in 2012 and Trump for his ruling allowing the Affordable Care Act to remain, classifying it as a tax.

But because Congress cut the tax penalty to zero, Texas and other Republican-led states sued, saying Roberts’ logic no longer applies.

“Now that the individual mandate can no longer be preserved as a tax, the constitutionality of Obamacare must be determined,” Texas Attorney General Ken Paxton said Monday. “Without the individual mandate, the entire law becomes unsupportable. The federal government cannot order private citizens to purchase subpar insurance that they don’t want, and I look forward to finally settling the matter before the U.S. Supreme Court.”

The court prides itself in showing its work at the end of a case, but how it arrives at its decisions remain shrouded in secrecy.

Which leads to speculation. Two of the four liberals are over 80 and could possibly step down during the term of the next president. The liberals’ voting power — and the ability to grant cases — would significantly diminish if a Republican wins. One wonders if agreeing to take the challenge next term and not during this one (requiring an opinion before the election) was a compromise.

What about the fact that the court granted the request of the Democratic-led states to take up the case, but not a request from the House of Representatives? That decision could have been made so that the court wouldn’t have to decide whether the House had the legal right or “standing” to bring the case. But could it have also been an effort to keep another Democratic-led House v. Trump dispute off the books.

“Many Americans, and at least one member of the court (cough, cough, Chief Justice Roberts), aren’t excited to relive another battle between those two bodies, so soon after the impeachment,” said Jessica Levinson, a professor at Loyola Law school.

The court is already facing a number of cases this term about Congress’ power, specifically as it related to Trump. Later this month, it will hear arguments in Trump’s attempt to keep his taxes and financial documents private.

“The court could be motivated to avoid a docket that looks like it is just the referee of disputes between the Democratic-led House and the Trump administration,” Levinson said.

By leaving out the House, the court indicated it won’t hear directly from the body that passed the law. It’s a point most likely not lost on House Speaker Nancy Pelosi, but she released a statement praising the court’s decision.

“The sooner the GOP’s dangerous anti-health care lawsuit is ended, the better,” she said.

And then she linked the case to the coronavirus outbreak, an issue that also might become a talking point in the next several months.

“The Trump administration continues to ask the court to destroy protections for people with pre-existing conditions and tear away health coverage from tens of millions of Americans,” she said. “Even in the middle of the coronavirus crisis, the Trump administration continues to ask the court to destroy protections for people with pre-existing conditions and tear away health coverage from tens of millions of Americans.”

Pelosi now has at least nine months to repeat that argument. Day in and day out.