Supreme Court sets stage for historic ACA showdown (again)

GOP opponents of the ACA have twice asked the Supreme Court to tear down the reform law. Twice they've failed. Will the third time be the charm?
Image: Supreme Court Building
The Supreme Court building.Sarah Silbiger / Reuters file
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By Steve Benen

Twice in recent years, Republican opponents of the Affordable Care Act have asked the Supreme Court to tear down the health care reform law. In both cases, "Obamacare" survived the high court challenges.

For the right, will the third time be the charm?

The Supreme Court said Monday that it will take up a legal challenge to Obamacare, agreeing to hear the case in its new term that begins in October. That means the program will continue for at least another year. It also means the justices won't be handing down a ruling on the contentious issue of health care in June, just as the presidential campaign heats up. That may be good news for Republicans, who would prefer to avoid the issue in an election year.

For those who may need a refresher, at issue is a lawsuit from state Republican officials -- with the enthusiastic support of the Trump administration -- who are arguing that the ACA must be torn down in its entirety because Congress gutted the ACA's individual mandate in late 2017. By Republicans' reasoning, this provision was so integral to the reform law that the nation's health care system can't function without it.

Their argument, of course, is belied by the fact that the Affordable Care Act appears to be working just fine, even after federal GOP lawmakers effectively scrapped the relevant tax provision more than two years ago.

Nevertheless, Republicans persuaded a far-right judge in Texas to go along with the scheme. The week before Christmas in 2018, U.S. District Judge Reed O'Connor -- a Bush-appointed jurist in Texas -- agreed to strike down the entirety of the Affordable Care Act, root and branch.

Even many conservatives and ACA critics agreed that the ruling was indefensible. Reactions tended to include words and phrases such as "pretty bananas," "embarrassingly bad," and "absurd."

The hope among health care advocates was that the 5th Circuit would hear the appeal, overturn the nonsensical district court ruling, and the matter would be put to rest. That's not what happened: late last year, a three-judge appellate panel -- one nominated by Donald Trump, the other by George W. Bush -- ruled that the ACA's individual mandate is unconstitutional and sent the case back to the lower court.

In effect, the 5th Circuit tasked O'Connor, the far-right judge whose ruling was widely panned, to reconsider the case after they rejected the ACA's individual mandate. The point, evidently, was for him to evaluate whether elements of the law could remain intact, or whether the entirety of the ACA system -- every benefit, every protection, every safeguard, etc. -- should be destroyed.

Now that the Supreme Court has taken up the case, we won't have to wait for a lengthy appellate process to unfold. We will, however, almost certainly have to wait until after the 2020 elections, which is what Republicans hoped for: if conservative justices were to gut the health security of tens of millions of Americans, shortly before voters went to the polls, GOP candidates would face an immediate political crisis.

As for the threat many families are now facing, it's worth noting for context that the last time the Supreme Court considered the legality of "Obamacare," the reform law prevailed in a 6-3 ruling. Of the six justices in the majority -- Roberts, Kennedy, Ginsburg, Breyer, Kagan, and Sotomayor -- five are still on the nine-member bench. It's why, when push comes to shove, most of the people involved in this fight believe common sense and a sensible approach to the law will ultimately prevail.

That said, the high court is sometimes unpredictable, and it wouldn't take much of a shift for the justices to tear down the nation's health care system.