• Bloomberg


While the eyes of America were on the House vote to impeach President Donald Trump, a court ruling to leave the fate of the Affordable Care Act, also known as “Obamacare,” up in the air may be a bigger risk to his 2020 re-election hopes.

The ruling Wednesday, in a lawsuit led by Republican states and backed by Trump, rendered the Affordable Care Act’s individual mandate to buy insurance unconstitutional but punted on whether that meant the rest of the law must also be invalidated. That issue was sent back to the lower court judge to determine, which all but ensures the issue won’t be resolved by the election.

Democrats vying for their party’s presidential nomination have made health care a central issue, debating over how far-reaching government involvement should be. But the ruling highlights the one issue they are united on — that the Affordable Care Act’s protections should not be undone.

“We knew that health care was going to be a 2020 political issue. This guarantees that there will be a really vigorous debate about how you cover people,” said Douglas Holtz-Eakin, the president of the American Action Network, a conservative research and advocacy group.

The issue has played “really badly” for Republicans, he said, which is one reason party strategists were hoping the court of appeals in New Orleans would uphold the rest of the law so they could move on.

A decision to eliminate “Obamacare” would have forced cataclysmic changes in the health care system, wiping away billions of dollars in assistance and consumer protections.

Republicans lost a wave of House races and governor’s mansions in 2018 because of a backlash against their failed attempts to roll back the ACA. Exit polls published by CNN found that health care was the primary issue for 2018 voters, and those who selected it preferred Democratic candidates by 75 percent to 23 percent.

Republicans “disqualified themselves with the public on health care,” Holtz-Eakin said.

After Wednesday’s ruling, Democratic lawmakers condemned it. Speaker Nancy Pelosi issued a statement during the impeachment debate calling the decision a “chilling threat to the 130 million Americans with pre-existing conditions and every other family who depends on the lifesaving protections of the Affordable Care Act.

“Despite their claims to support protections for people with pre-existing conditions, Republicans have taken every opportunity to dismantle them,” she said.

California Attorney General Xavier Becerra, a Democrat, said the state is prepared to ask for a review of the ruling.

“While the appellate court did not explode the ACA, it certainly laid in place the time bomb by sending it back to the district court to do just that,” he said in a call with reporters Thursday.

Trump, on the other hand, called the ruling “a win for all Americans” and vowed to “give the American people the best health care in the world.”

But there’s “no sign” of a health care plan that Republicans can coalesce around and warned that debating the ACA means playing on Democrats’ turf, Holtz-Eakin said, since the most unpopular part of the ACA that conservatives railed against — the individual mandate — has been eliminated.

“All of the things that were lightning rods on the right were gone,” Holtz-Eakin said. “All you can do now is say we don’t want to spend that money, which means we don’t want to cover those people. That’s a tough place to be in.”

To counter that, GOP strategists prefer to keep the 2020 focus on more left-leaning plans like the proposal by Bernie Sanders to eliminate private insurance and put all Americans in Medicare, or Elizabeth Warren’s gradual transition to Medicare for all.

Still, some top Republicans sought to distance themselves from the lawsuit. Sen. Lamar Alexander of Tennessee, chairman of the health care committee, called the Justice Department’s argument that the ACA must be struck down “far-fetched.”

He said in a statement Wednesday that “I am not aware of a single senator who said they were voting to repeal ‘Obamacare’ when they voted to eliminate the individual mandate penalty.”

The ruling “punts on the question of severability,” or whether the individual mandate can be separated from the rest of the law, according to Allison Hoffman, professor at University of Pennsylvania Carey Law School. There’s no end in sight for the case to decide the ACA’s fate, she added: “This is going to go on forever.”

If the Supreme Court is asked to review the ruling, one conservative legal scholar said it will be very hard for the justices to hear the case this term.

“Had the court reached its decision maybe about a month ago, I might be giving you a different answer but it’s very unlikely we’ll see anything this term,” said Joshua Blackman, an associate professor at the South Texas College of Law in Houston.

The ruling that the mandate is unconstitutional “is basically a technicality, because the mandate is no longer being enforced,” Mark Hall, a professor at Wake Forest School of Law, said.

“So the only thing that’s important about this case is whether that affects any other part of the ACA, and basically this opinion says absolutely nothing about that question.”

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