If a tax falls in a legislative forest and collects no money, does it still make a federal mandate to purchase health insurance constitutional? The Trump administration weighed in with a resounding no overnight in an amicus brief to the Supreme Court just before the deadline for submissions. The brief’s appearance in a federal challenge by eighteen states to the Affordable Care Act will add yet another flashpoint on healthcare to the 2020 election, the New York Times points out:
The Trump administration asked the Supreme Court late Thursday to overturn the Affordable Care Act — a move that, if successful, would bring a permanent end to the health insurance program popularly known as Obamacare and wipe out coverage for as many as 23 million Americans.
In an 82-page brief submitted an hour before a midnight deadline, the administration joined Republican officials in Texas and 17 other states in arguing that in 2017, Congress, then controlled by Republicans, had rendered the law unconstitutional when it zeroed out the tax penalty for not buying insurance — the so-called individual mandate.
The administration’s argument, coming in the thick of an election season — as well as a pandemic that has devastated the economy and left millions of unemployed Americans without health coverage — is sure to reignite Washington’s bitter political debate over health care.
The timing is interesting in more than one way. First, as the NYT notes, it’s almost certain to stoke more passions in the upcoming election, and that may not be a good idea for Donald Trump. Democrats successfully leveraged the health-care issue in 2018’s midterms, giving Republicans a shellacking that was almost as bad as the one the GOP gave Democrats after passing ObamaCare. Republicans still don’t have a coherent plan to replace ObamaCare if the Supreme Court invalidates it, either. This has the potential to hand Joe Biden a very big stick on domestic policy right in the middle of a pandemic.
Biden took advantage of it yesterday, using the amicus brief to argue that “23 million Americans would lose coverage overnight.” Complications from COVID-19 would become “the new pre-existing conditions” that would no longer be protected from health-policy cancellation, Biden argued, saying “I cannot comprehend the cruelty”:
If Biden seemed uncommonly coherent here, it’s because he’s worked on preparation for this issue for years. These are well-rehearsed arguments that Biden can effectively deliver, even with the slight update to include COVID-19 complications. (Biden slips up when discussing COVID-19 more directly, as Karen just pointed out.) Moreover, Biden has an advantage over Trump in this case by having a solution on the table — preserving ObamaCare — while the White House still hasn’t put together any kind of comprehensive plan together at all. Nor has its allies on Capitol Hill, for that matter, despite that 2018 shellacking.
So why make this a campaign issue now by filing a brief in the case? That’s a mystery, as the combined 18 Attorneys General likely made all of the apposite arguments in their briefs already. If any gaps existed, the White House could have quietly worked with others to fill it. It’s not as if this hasn’t been on the table for a while, and that actually makes the last-minute filing look even more curious. Did this intervention come at the end of a debate on whether to pull health care back into the debate? If so, who thought that was a good idea?
By the way, the court won’t even consider this case until the start of its new term in October, which means the political risk might not even have a payoff. The argument over tax policy and reconsideration of the court’s previous ruling on the ACA will likely take months to hash out. It won’t even work as a reminder of the need to appoint conservative jurists to the Supreme Court before people cast ballots in the general election. Team Trump might have been much better off letting the state AGs carry the water on this case, especially if it can’t put together a comprehensive replacement proposal for ObamaCare in the next couple of months — one that the entire GOP can support. Unlike the last time around.