Obamacare Embattled, Again

Posted by Ron Decker on 01/14/2019

In 2007, George W. Bush nominated Judge Reed O’Connor to a federal court judgeship. We went on living our lives, and he his, frequently making controversial rulings on how the law interprets sexual orientation, gay rights, and yes, the merits and demerits of Obamacare.

Then, late on Friday afternoon, December 21st, 2018, when we were all going about our business, preparing for holiday parties, driving home from work, wishing motorists ill or well, reluctantly shopping, or simply looking forward to a vacant weekend before Christmas really asserts itself, he produced a hostile 55-page opinion deciding against the constitutionality of Obamacare. Our phones dinged. We collided with other disheveled shoppers—there were fender-benders. We released a long pensive exhale, and asked, Again?

As we will recall, when the ACA appeared before the Supreme Court in 2012, Chief Justice John Roberts, casting the deciding vote, interpreted the individual mandate as a constitutional exercise of Congress’s taxing power. Well, the 2017 Republican Tax Bill got rid of the individual mandate penalties, and on 12/21/18, its absence became the deciding factor in O’Connor’s courtroom.

According to O’Connor, it is “essential and inseverable from the remainder of the ACA,” and without it, “[the] architectural design [of the Bill] fails.” In conclusion, O’Connor wrote, “[t]he court finds the individual mandate can no longer be fairly read as an exercise of Congress’s tax power and is still impermissible under the interstate commerce clause—meaning the individual mandate is unconstitutional.” This means that once again the ACA will have to sit through months and months of dissection, defense, mutilation, insults, and heralding before the various courts likely punt it back to the Supreme Court, where that venerated body will either agree to review it or not.

Be on the lookout come Christmas, 2019.

Shortly after O’Connor’s decision, praise and disapproval came surging out of the various camps. President Trump hastened to Twitter to dispatch his sense of vindication: “As I predicted all along, Obamacare has been struck down as an Unconstitutional disaster… [g]reat news for America.” (At least someone feels predicative and comprehending these days.) And its usual supporters put out vehement promises of appeals and fights.

Since the ruling marks an immediate termination of the law, to quell fears for those insured through ACA exchanges, Seema Verma, administrator of the Centers for Medicare and Medicaid Services, wrote on twitter that “the recent federal court decision is still moving through the courts, and the exchanges are still open for business and we will continue with open enrollment. There is no impact to current coverage or coverage in a 2019 plan.”

In 2010, the ACA introduced voters to imperfect medical insurance while also, crucially shaping up and admonishing the industry for its decades of profitable misconduct. Whether the issues come from the compromises and provisions Democrats had to stuff into the law to get it passed in 2010, or Obama’s signature legislation is altogether hogwash, no bill faces nearly a decade of enmity without having at least something wrong with it. In it each party finds the reflection of everything they dislike about the other side and revere about themselves—Democrats protect it, and are often obtrusive about its limitations, because it marks a signature achievement that, in theory, advanced the livelihood of many Americans. Republicans abjure it because every recollection illustrates government overreach, the countless failed attempts to block and appeal it, its reputed costliness, etc. This is why it neither thrives nor dies.

But as the midterms reiterated, healthcare is a bipartisan concern for voters. Those who don’t have access to medical insurance through their employers would like to avoid crippling financial difficulties if and when they face health problems and as the polls indicate, prefer the humble safeguards offered by the ACA over returning to the unsustainable system pre-ACA, or indeed, the healthcare bills proposed during Trump’s presidency.

In any event, we can only hope that O’Connor’s ruling, tiresome as it may be, will help spawn a resolution that might end in either an enhanced version of the ACA or something altogether different—and better.  

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