Notice & Comment

The Supreme Court, the ACA, and COVID-19 Walk into a Bar

As countless news stories have now described, Justice Ginsburg’s death and her likely replacement by Judge Amy Coney Barrett have raised the odds that the Supreme Court will hold invalid all or part of the Affordable Care Act. In the New York Times last week, Andy Slavitt and I discussed what that should mean for the coming election:

Republicans don’t want to talk about health care in this election. The topic typically ranks as the single most important issue for voters, who view Democrats more favorably on it. Indeed, Republican losses in the 2018 midterms were widely attributed to the party’s stance on health reform.

But President Trump’s support for a dangerous Supreme Court case offers a simple, clear way to explain to voters that Republicans are lying when they say they support protections for people with pre-existing conditions. The explanation will land with particular force in a country suffering from a botched response to the coronavirus pandemic.

Keeping health care in the news will also focus attention on all the other ways that the Trump administration has worked to make Americans feel less secure: imposing onerous paperwork requirements on Medicaid beneficiaries; crippling the health care exchanges; and sowing discord in the insurance markets. The percentage of Americans without health insurance has ticked up every year since President Trump took office.

The details are complicated. But the Supreme Court case is mercifully easy to grasp. The lawsuit poses an existential threat to the nation’s health care system, and President Trump should be judged for recklessly supporting it.

If you’re playing the odds, the case is still probably a loser. The Chief Justice has twice rejected much stronger challenges to the law and Justice Kavanaugh may supply the fifth vote to turn the case away. Kavanaugh is a standing hawk and the plaintiffs, as I’ve argued, don’t have standing. He has written recently of the importance of salvaging as much of a congressional statute as possible, even when it contains a constitutional flaw. And when the first Obamacare case came before him when he sat on the D.C. Circuit, then-Judge Kavanaugh stayed his hand and voted to dismiss the case on jurisdictional grounds.

But no justice’s vote is assured, and the ACA’s supporters are right to be nervous about the possibility of a calamitous outcome. In particular, Andy and I flagged a suggestion that Richard Primus and I made nearly two years ago: that Congress could pass a one-sentence law that would make the case evaporate. As Andy and I explained, “Democrats could put all of this nonsense to an end — but only if they win big in the election.”

I also had the chance to go on Andy’s podcast, In the Bubble, to discuss the whole mess. (I stole the headline for this blog from the show’s producer.) I’m probably Andy’s least illustrious guest—he’s interviewed Governor Gretchen Whitmer, Andrew Yang, two former FDA administrators, and the science writer extraordinaire Ed Yong—but I tried to keep up. As I told to Andy, adding Judge Barrett to the Supreme Court means there’s a bigger margin for crazy. “If you had Judge Barrett on the court” back in 2012, I told him, “the ACA would be gone already.”

I also spent last Thursday grousing on twitter about President Trump’s latest stunt of trying to use an executive order to claim that he’s protecting people with preexisting conditions. No, I explained, “calling something an executive order does not make it law.”  Instead, issuing the executive reflects a presidential effort to confuse the American public about the extraordinarily high stakes of the coming election.


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