The opposition to Obamacare got a breath of new life last week in a federal courtroom in Texas.
The health insurance options of hundreds of thousands of Georgians, perhaps up to 1 million, may be in play again as a result of a federal lawsuit brought by Texas, Georgia and other Republican-led states.
Republican foes of the Affordable Care Act (also known as Obamacare) in Congress and the Trump administration largely gave up on their full-scale campaign last year to repeal it, though they did chip away at important pieces. But the full-scale effort found another path. The lawsuit, once considered a long shot, is now gaining attention. In June, the Trump administration took the unusual step of supporting part of it. Then at a hearing last Wednesday, the judge showed more than a little interest.
What it means to Georgia is still in question. Here’s the lowdown.
1. What’s this?
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Texas and Wisconsin led 20 states to file a new lawsuit against Obamacare in February. Other states, led by California, are fighting the suit. As a matter of tradition, presidential administrations usually defend federal laws in court, but occasionally they don’t, and Attorney General Jeff Sessions wrote Congress that the U.S. Department of Justice would side with the plaintiffs against major portions of the ACA law in this suit.
2. Why now?
The lawsuit argues that it has a new legal foothold, following the GOP’s successes in Congress against the ACA last year. One of those moves last year gutted the ACA’s individual mandate that said every American must have health insurance. It left the mandate in place but zeroed out the tax penalty for violating it.
That’s important because when the ACA survived its original challenge in the U.S. Supreme Court in 2012, it did so because Chief Justice John Roberts wrote that the individual mandate was a tax, and Congress has the power to tax.
Now, the lawsuit argues, the tax is gone so the whole law should be gone.
3. What are the chances?
Hard to say. Until recently many legal scholars, even conservative ones, thought the suit was pie in the sky. The law’s authors wrote in a standard “severability” clause that basically said killing part of the law doesn’t kill the whole law.
But on the other hand, the plaintiffs were both smart in lucky in getting the judge who’s presiding. U.S. District Judge Reed O’Connor in the Dallas-Fort Worth area is a former aide to Sen. John Cornyn, the GOP majority whip who helped lead the ACA repeal efforts. And O’Connor has a history of ruling against Obamacare that the blog Law360 said “could send ACA supporters reaching for bottles of Xanax.”
Indeed, as reporters read the tea leaves from the court hearing last Wednesday, several said the judge could be leaning toward the plaintiffs’ view.
4. What could happen?
The Department of Justice doesn’t want the whole law revoked immediately, saying that could cause “chaos” in the insurance market. If the DOJ gets its way, what would happen is just quashing the individual mandate for good, as well as eliminating the mandates that make most U.S. health insurance plans cover pre-existing conditions as well as “essential health benefits.”
The plaintiffs, however, are asking for the whole ACA system to go. In that case, the impact would be broader.
A 2017 analysis by the Center on Budget and Policy Priorities on a congressional repeal proposal that year found that just over 1 million Georgians would drop or lose health insurance.
Conservatives point out that many of those would drop it out of choice, because it’s too expensive right now or they believe they don’t need it. Liberals point out that many of those would lose it involuntarily, because the ACA pours more than $1 billion a year into subsidizing working-class and lower-income Georgians’ health insurance.
5. When will we know?
It will be a long time.
Whatever the outcome under Judge O’Connor, the losers will inevitably appeal it to the U.S. Fifth Circuit Court of Appeals. After that, it could go to the U.S. Supreme Court.
If it winds up there, the court’s makeup will not be an easy read to the decision. The swing vote that upheld the ACA in 2012 was Chief Justice John Roberts, a Republican appointee, and he is still there along with the other four Democrat-appointed justices who voted with him.