Actually, scratch that. I don’t think he, specifically, will win. Friday night’s ruling will likely be tossed on appeal without Schumer lifting a finger. I’ve read half a dozen op-eds today by hardcore ObamaCare opponents on the right — Philip Klein, Jonathan Adler, the WSJ, National Review, among others — specifically looking for reasons to believe that the court’s decision might be upheld and O-Care might finally go down. The court’s logic is seductive, after all: If, as many Democrats told us in 2010, the mandate is the engine of ObamaCare’s fiscal scheme, how can that scheme still be running now that the engine has been essentially removed by Congress? The whole law is out the window along with the penalty for not purchasing health insurance. Isn’t it?
Every op-ed I’ve seen concludes that the court’s ruling is garbage, most notably on severability. The doctrine of severability says that when courts find one piece of a larger law to be unconstitutional, they should look hard for reasons to “sever” that unlawful provision from the rest of the program rather than striking the entire program down. In this case, Congress itself deemed the mandate sufficiently severable from the rest of the ObamaCare that it chose to repeal the mandate penalty without touching other parts of the law. Here’s Adler, writing with liberal Abbe Gluck:
Sometimes severability cases are difficult because it is hard to guess how much importance Congress attributed to one provision, especially in a lengthy law like the Affordable Care Act. But this is an easy case: It was Congress, not a court, that eliminated the mandate penalty and left the rest of the statute in place. How can a court conclude that Congress never intended the rest of the statute to exist without an operational mandate, when it was the 2017 Congress itself that decided it was fine to eliminate the penalty and leave the rest of the law intact?…
Judge O’Connor wrote that we cannot divine the intent of the 2017 Congress because Congress didn’t have the votes to repeal the entire law but wished it could. That’s ridiculous. Congressional intent is all about the votes. One would not say Congress wished it could repeal the Civil Rights Act if only a minority of Congress supported such a move. It is conservative judicial doctrine 101, as repeatedly emphasized by Justice Antonin Scalia, that the best way to understand congressional intent is to look at the text Congress was able to get through the legislative process.
The Democrats who passed ObamaCare in 2010 might have believed that ObamaCare couldn’t function without the mandate. The Republicans who repealed the mandate penalty in 2017 may have hoped it couldn’t — but they didn’t do nearly as much as they might have legislatively to make that happen. In point of fact, ObamaCare does continue to function, sort of, without an enforceable mandate. If the GOP wants the whole law to end, why hasn’t it used its control of Congress to uproot more parts of it, using reconciliation in the Senate if need be?
There’s backfire potential in the court’s ruling, notes the WSJ:
As for the politics, Democrats claim to be alarmed by the ruling but the truth is they’re elated. They want to use it to further pound Republicans for denying health insurance for pre-existing conditions if the law is overturned. Democrats campaigned across the country against Mr. Paxton’s lawsuit to gain House and Senate seats in November, and they will now press votes in Congress so they can compound the gains in 2020.
President Trump hailed the ruling in a tweet, but he has never understood the Affordable Care Act. His Administration has done good work revising regulations to reduce health-care costs and increase access, but the risk is that the lawsuit will cause Republicans in Congress to panic politically and strike a deal with Democrats that reinforces ObamaCare. This is what happens when conservatives fall into the liberal trap of thinking they can use the courts to achieve policy goals that need to be won in Congress.
Schumer does seem pretty energized here. So long as the ruling is in effect, the fate of coverage for preexisting conditions is a political hot potato for the GOP. That’s a price worth paying perhaps if you think there’s a chance the Supreme Court would uphold the lower court’s ruling, but c’mon. John Roberts didn’t burn his bridges with the right in 2012 to save this boondoggle only to reverse course now, grasping at a very thin judicial straw to do so. And even if he did, what would replace ObamaCare once it vanished? Nancy Pelosi has a say in this now. Odds are whatever compromise the two sides reached would strongly resemble O-Care, if only for reasons of policy continuity.
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