Obamacare is under legal assault for what seems like the thousandth time.
A Texas judge heard oral arguments Wednesday in a state-led, Trump administration-supported case that takes aim at the Affordable Care Act — specifically, the mandate requiring individuals to obtain health insurance. The argument centers on the fact that because Congress last year eliminated the penalty for not having insurance, the so-called individual mandate can no longer be considered a tax and is therefore unconstitutional.
The states in the case, led by Texas, believe that the individual mandate is so crucial to the law that the whole thing needs to be struck down. The Trump administration is focused more narrowly on eliminating parts of the law that protect Americans with pre-existing conditions. Either way, experts see the case as a long shot. And the administration’s backing — a departure from the custom of defending federal law — looks like a blunder that may help Democrats in upcoming midterm elections while also bolstering the ACA.
When an Obamacare skeptic casts doubt on the case — as prominent libertarian legal scholar and ACA critic Jonathan Adler did recently in calling the case “absurd” — you know it’s not off to a good start. The issue is the attempted leap from the idea that the mandate is unconstitutional to the notion that the entire law or large portions of it need to be struck down.
To make that jump, the lawsuit likely needs to prove that Congress intended for its action last year to apply to other parts of the ACA. But in the real world, Congress voted to zero out a tax while explicitly maintaining the rest of the law. Congress had multiple opportunities to repeal bigger chunks of the legislation, and chose not to. Its intent is pretty clear.
This lawsuit is more likely to give Democrats fodder for ads than actually damage the ACA.
A recent Kaiser Family Foundation poll found that 75% of Americans and 58% of Republicans feel guaranteed coverage for sick Americans is very important. Democrats are certain to highlight the Trump administration’s active attempt to end those protections, which could bolster their chances in midterm elections.
Large Democratic gains would have major health care implications, most notably ending hopes for another attempt to repeal and replace the ACA anytime soon. A “blue wave” also could lead a number of states to accept the ACA’s expansion of Medicaid as a result of ballot initiatives and shifts in statehouse control. This would result in millions of people gaining health insurance and support the trend toward stability in the individual market. Democrats would also likely increase oversight of the Trump administration’s efforts to weaken the ACA by executive action and rulemaking.
It’s not easy to create a lose-lose-lose situation. But the GOP — facing likely defeats in court that could spill over into elections and the health care policy world — may just have managed it.
— For more columns from Bloomberg View, visit http://www.bloomberg.com/view.
Max Nisen is a Bloomberg Opinion columnist covering biotech, pharma and health care. He previously wrote about management and corporate strategy for Quartz and Business Insider.