The Affordable Care Act was an imperfect and incomplete reform. The political compromises needed to get it through Congress created a complex system in which too many people fall through the holes. It was also underfunded, which is why deductibles are often uncomfortably high. And the law has faced sabotage both from G.O.P.-controlled state governments and, since 2017, the Trump administration.Despite all that, however, the act has vastly improved many Americans’ lives — and in many cases, saved lives that would otherwise have been lost due to inadequate care. The progress has been most dramatic in states that have tried to make the law work. Before the A.C.A. went into effect, 24 percent of California adults too young for Medicare were uninsured. Today that number is down to 10 percent.
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The Affordable Care Act was an imperfect and incomplete reform. The political compromises needed to get it through Congress created a complex system in which too many people fall through the holes. It was also underfunded, which is why deductibles are often uncomfortably high. And the law has faced sabotage both from G.O.P.-controlled state governments and, since 2017, the Trump administration.
Despite all that, however, the act has vastly improved many Americans’ lives — and in many cases, saved lives that would otherwise have been lost due to inadequate care. The progress has been most dramatic in states that have tried to make the law work. Before the A.C.A. went into effect, 24 percent of California adults too young for Medicare were uninsured. Today that number is down to 10 percent. In West Virginia, uninsurance fell from 21 percent to 9. In Kentucky, it fell from 21 to 7.
Over all, around 20 million Americans who wouldn’t have had health insurance without the A.C.A. now do.
At the same time, none of the dire predictions conservatives made about the law have come true. It didn’t bust the budget — in fact, deficits came down steadily even as the A.C.A. went into effect. It didn’t discourage workers from taking jobs: Employment of Americans in their prime working years is back to what it was before the financial crisis. And despite Donald Trump’s best efforts to undermine it, the system isn’t in a “death spiral”: Insurers are making money and premiums have stabilized.
In short, Obamacare is a success story. And the U.S. public really, really disapproves of Republican attempts to destroy it, which was arguably the main reason Democrats did so well in the midterm elections.
But Republicans still hate the idea of helping Americans get the health care they need. They’re still determined to reverse the progress we’ve made. And in case you haven’t noticed, today’s G.O.P. doesn’t believe that the will of the voters should determine policy, or that rule of law as normally understood should constrain the right’s efforts to get what it wants.
Which brings me to the federal lawsuit currently before the Court of Appeals for the Fifth Circuit, a suit brought by 18 state attorneys general, and backed by the Trump administration. This suit claims that the whole act is unconstitutional and should be thrown out. The plaintiffs’ arguments are clearly specious and made in obvious bad faith. But one lower-court judge has already ruled in the suit’s favor, and early indications suggest that the two Republican-appointed judges on the three-judge panel hearing the appeal may agree.
But wait, haven’t we been here before? Yes. In 2012 the Supreme Court ruled that Obamacare was indeed constitutional. On one central dispute, the constitutionality of the individual mandate — the requirement that individuals be insured, or pay a penalty — Chief Justice John Roberts ruled that the penalty constituted a tax, and that taxes are clearly constitutional. So the law stood.
Why, then, is this being relitigated? Well, in 2017 a Republican-controlled Congress, after balking at actually repealing the A.C.A., reduced the penalty for being uninsured to $0.00 — effectively eliminating the mandate. Aha, said the law’s opponents: Since the mandate no longer collects any money, it’s not a tax, and it is hence unconstitutional, and so therefore is the whole law.
As far as I can tell, a vast majority of legal experts consider this argument ridiculous, and so it is. After all, it says that the A.C.A. would be constitutional if Congress had explicitly eliminated the mandate, as opposed to simply making it irrelevant; the act would also be constitutional if the penalty had remained positive, no matter how small, say $1, because then it would still be a tax.
I’m not a lawyer, but I’m pretty sure that if a legal argument has absurd implications, it’s an absurd argument.
Yet, as I said, one Republican judge has already ruled in favor of this nonsense, and it looks at least possible that the two on the appellate panel will follow his lead.
Even if they do, the case will be appealed to the Supreme Court, which probably — probably — will reject the suit. But few would have imagined that it could get as far as it has.
There are, I’d say, two main implications of what we’re seeing here.
The first is that right-wing partisanship has already corrupted much of the judiciary. At this point it’s clear that there are many judges who will rule in favor of whatever the G.O.P. wants, no matter how weak the legal arguments.
The second is that even though Obamacare is now part of the fabric of American life, even though many of the beneficiaries are Republican voters — think about those numbers for Kentucky and West Virginia — Trump and his party are as determined as ever to destroy it.
And what this means in turn is that the 2020 election will be another referendum on health care. If you’re an American who suffers from a pre-existing condition, or doesn’t have a job that comes with health benefits, you should know that if Trump is re-elected, he will, one way or another, take away your health insurance.
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