If you are worried about your health care — and that ought to be nearly everyone — pay no attention to the triumphant tweet of President Trump last Friday or the hurrah the same day from Leslie Rutledge, the Arkansas attorney general, after the most political judge in America declared the whole Affordable Care Act null and void.
Listen instead to the plaintive statement issued by the White House later the same day: Don’t worry because it’s really not going to happen for a long time, if ever. Trump’s health department followed up by assuring people that every part of Obamacare is going to continue just as it is.
See, saner people in the administration and the Republican Party had sent the judge a subtle message: Give us the political victory we’ve wanted and failed to achieve for eight years, but don’t actually throw us in that briar patch.
If the Fifth Circuit Court of Appeals, a Republican court, upholds the ruling, in another year to 18 months it may go to the Supreme Court and few legal authorities believe it would have much chance of success there, particularly in a presidential election year. Every member of the Supreme Court, including the two Trump justices, is on record opposing the judge’s idea that the court can substitute its notion of severability in an act of Congress for that of Congress itself.
Rutledge and the other 19 or so Republican attorneys general sent Judge Reed O’Connor memos supporting the Republican suit to eliminate every vestige of the Affordable Care Act and asked him to issue a mandate ending all the law’s functions immediately, as O’Connor has done every other time Republicans have asked him to strike down Obama-era laws, most recently in suits against the anti-discrimination provisions of the ACA and federal protections for transgender children in the public schools.
Why the ambivalence of Republicans, who are largely mute now after running against the ACA for years?
Here’s a clue. If O’Connor had actually issued the mandate that Rutledge and others had asked for, this would be the situation today: Seventeen million Americans (more than 300,000 of your Arkansas neighbors) who got medical insurance through the Affordable Care Act’s insurance exchanges or expanded Medicaid would have lost it this past Sunday. Another 130 million Americans with pre-existing conditions who won back or saved their coverage in employer or other insurance markets owing to the mandate in the ACA would have lost that protection or faced its loss sometime. Millions of young people who have stayed on their parents’ policies until the age of 26 would lose it. Women would go back to paying higher premiums than men. Insurance companies could again place annual or lifetime caps on coverage, and Obamacare’s caps on the out-of-pocket expenses you have to pay would go away. Insurance plans would no longer have to cover treatment for mental illness. Medicare patients would again have to pay for preventive services, which are covered under the ACA.
This year, Republicans agreed that all those provisions are desirable and that they will get around some day to restoring the protections in a new law. But most Americans finally figured out that those protections are the Affordable Care Act. If Trump and his party were for those things, why haven’t they passed or even introduced a law providing for at least a few of them while they controlled Congress?
Rutledge had said that by joining the challenge to the ACA she was protecting the state and federal governments from bankruptcy. The Arkansas Democrat-Gazette editorial page, which understands no more about the law than Rutledge does, continues the same argument — that the law is running up the federal debt and threatening the state’s solvency. Because it will reduce the outlay of state dollars for treating poor people, the paper again this week praised Governor Hutchinson for cutting close to 20,000 people from Medicaid for not proving they were working or trying hard to get a job.
The facts are that the ACA has trimmed the federal deficit by scores of billions of dollars every year and has been projected to do so far into the future. Far from undermining its solvency, the act has been a bonanza for the Arkansas treasury, pumping billions of dollars into the Arkansas economy since 2014 and hundreds of millions into the state treasury in the form of insurance premium taxes and ancillary taxes. Arkansas, which alone among surrounding states quickly took the government up on Medicaid expansion, is the only one not to suffer the closing of community hospitals since 2013.
The prayer of opponents of the law from the start was that the Supreme Court would declare that the commerce clause of the Constitution did not allow Congress to impose mandates upon the interstate health care system, just as opponents of Social Security and the Medicare/Medicaid amendments once sought to do. The Supremes came within one vote of doing it with Obamacare, but that vote has not changed with the substitution of two Trump justices committed to destroying laws enacted by the other party.
Congress and the Trump administration have severely crippled the law and made insurance more expensive and harder for people to enroll, but there will be enough votes in the new Congress — even the Senate — to fix all the flaws in both the original law and those created by Trump and Congress, if, alas, the president and the Senate majority leader would let them.