It’s all about health care

Over the weekend, there were two momentous events in Washington that will undoubtedly have a seriously negative effect on the health (or lack thereof) of the American people. However, just one of these events on its surface seems to be about healthcare. In this post, I will discuss the one that doesn’t seem to be about healthcare, but actually is. Barring some unforeseen development before then, in my next post I’ll discuss the other event.

The former event was the death of Ruth Bader Ginsburg on Friday and Mitch McConnell’s immediate (i.e. about 1 ½ hours after her passing was announced) announcement that he would push through Trump’s nominee before the election – assuming four Republican Senators don’t block that process.

Why is this event about healthcare? Because the Supreme Court is set to decide in December a case that would literally overturn Obamacare and cause more than 20 million people to lose healthcare coverage in the middle of a pandemic.  The case is based on a ridiculous legal argument – that, by invalidating Obamacare’s financial penalty in the 2017 tax cut bill, Congress really intended to kill Obamacare entirely, since when the law was passed in 2010 the drafters assumed that a financial penalty for not being covered was the only way to ensure enough signups so that the health insurers wouldn’t take a bath due to having to cover pre-existing conditions (it turns out that assumption was wrong, since signups are doing quite well, even though the penalty is gone).

This legal argument should never have been accepted by any court since there’s absolutely no record that Congress considered anything like this when they were developing the 2017 bill. But the case was validated by a very conservative judge in Texas, whose decision was let stand by the very conservative appellate court in New Orleans. Meanwhile, the White House – which was not part of the case originally – decided to jump in later on the side of the plaintiffs, and only a few months ago President Trump decided to affirm that decision, even though his campaign manager (who sidelines as Attorney General) William Barr tried to advise him that this was a politically unwise decision.

And indeed it was unwise, but Justice Ginsburg’s death just made it much more unwise. This is because:

·        As long as RBG was alive, it’s unlikely that the Court would have let stand the appellate court’s decision. But if she’s replaced by a conservative justice who is against the ACA, it’s likely the Court will let it stand, and Obamacare will be invalidated next month.

·        More importantly, Obamacare is likely to be overturned even if a new nominee isn’t approved in November, because the Court now has a 5-3 conservative majority.

·        You might point out that Chief Justice Roberts saved Obamacare in 2015 by breaking with the conservatives – isn’t he likely to do the same thing in December? Yes he is, but here’s the problem: If he does that, it will mean there will be a 4-4 tie in the vote. This means the appellate court’s ruling will stand and Obamacare will still be invalidated. Only if one of the other conservative justices also switched (perhaps Gorsuch) would this result be avoided. So because of RBG’s passing, it is close to certain that Obamacare will be invalidated in December, regardless of whether Trump’s nominee is approved.

Why is this a political problem for Trump? Because Obamacare, after being made unpopular by a relentless ad campaign by the Republicans and especially the Koch Brothers, finally became popular after Trump became president in 2017 – and people began to realize it was in serious danger (of course, John McCain’s 2017 vote was all that saved Obamacare in Congress). The Democrats exploited this fear very successfully in the 2018 midterm elections, when they went from about 40 seats down in the House to about 30 seats up. This was the largest inter-party shift in history, both in absolute and percentage terms.

The Biden campaign (and the Democrats running to capture Republican-held Senate seats) will without doubt play up this problem, which they barely mentioned before RBG died. It’s already quite likely that Trump will be defeated and the Senate will revert to Democratic control, but this will seal the deal on both counts.

So if Trump were smart, he would nominate someone who has made it clear they support the ACA (and probably Roe v. Wade, too, since that’s another issue that didn’t loom very big in this campaign until RBG’s death). And if the Pope were Jewish, he would wear a yarmulke.

  I would love to hear any comments or questions you have on this post. Drop me an email at tom@tomalrich.com