WASHINGTON—On Friday evening, Dec. 14, Reed O’Connor, a GOP-named federal district judge in Texas, did the Republicans’ dirty work for them by declaring the Affordable Care Act unconstitutional. That could affect at least 20 million people directly and put everyone else back at the “mercy” of greedy health insurers who take your money and then deny you care. Below is a quick Q & A about what happened then and what happens next.
Q: How come O’Connor bounced the law?
A: He ruled on a lawsuit from 19 red-state attorneys general, led by Texas, challenging the law’s constitutionality. They picked Texas for their lawsuit, as they did for other suits challenging Obama-era laws and rules, because rural Texas is full of right-wing federal judges named by Republican presidents.
Q: Why did O’Connor call the ACA unconstitutional?
A: He said that when the GOP changed tax laws last year, they knocked out the requirement that individuals pay a “mandate” of $700 each if they are uninsured, either because their firms don’t provide insurance or because they did not sign up for individual coverage on the state exchanges the law set up.
Left unsaid: The Trump administration, with the willing acceptance of the rest of the Republicans in Washington, has done everything possible that it could to undermine the exchanges and other parts of the law.
Q: But that mandate’s just one section of the law. Why throw the whole thing out?
A: O’Connor said the entire law is interconnected, and the mandate, by pushing people to get coverage, was a key section of the ACA. So when the GOP congressional majority knocked out the mandate, they knocked out the whole ACA, the judge said.
Q: It sounds like the GOP really hates the ACA.
A: They do. They try to insultingly call it “Obamacare,” just like, during the Clinton administration, they called the doomed effort to create a national health care system “Hillarycare.” They tried 70 times to repeal the ACA since it passed in 2010.
As for why the GOP hates the ACA, Steelworkers President Leo Gerard said out loud, several years ago at his union’s legislative conference, what all ACA backers know: It’s because Obama is African-American.
The proof is that you don’t hear a peep out of the GOP about repealing Massachusetts’ statewide health care law, which was the model—mandates and state exchange included—for the ACA. Then-GOP Gov. Mitt Romney signed that law, working on it with state Democrats and the late Democratic Sen. Edward M. Kennedy, then chair of the U.S. Senate’s Health, Education, Labor, and Pensions Committee.
Q: So does that mean the law is immediately dead?
A: Actually, no. The sign-up period for the exchanges ended on Dec. 15, and those people will be enrolled. California extended its signup period beyond that. And the law is still in effect until the U.S. Supreme Court makes the ultimate decision, just as the justices did on the first GOP legal effort to toss the ACA out.
That’s because while O’Connor ruled the ACA is unconstitutional, he didn’t issue a court order cancelling it nationwide. That’s what other Texas GOP-named federal judges did with other Obama-era laws and rules.
Q: So what’s the next step?
A: The case now goes to a higher court, the 5th U.S. Circuit Court of Appeals in New Orleans. But this is where it really gets treacherous for the ACA and people who depend on it, for several reasons.
The U.S. Justice Department is supposed to defend federal laws in higher courts when judges overturn them. It’s a long tradition—which Trump’s Justice Department has defied. It didn’t defend applying what was left of the Voting Rights Act to Texas and it didn’t defend pro-worker laws and rules, either.
One rule Trump’s DOJ abandoned was the Labor Department’s “fiduciary rule” which told brokers and bankers handling workers’ pensions that they had to put their clients first. The Chamber of Commerce and that same coalition of GOP attorneys general sued to overturn that, won before a GOP-named federal judge in—where else?—rural Texas. DOJ didn’t defend it which leads to…
The 5th Circuit bench is majority-Republican. It declined to even hear the pensions case.
Don’t expect Trump to defend the ACA, either. When O’Connor released his 55-page ruling late on Dec. 14, the Oval Office occupant gleefully tweeted: “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster!”
Q: If the Justice Department won’t defend the ACA in court, to keep our health care, who will?
A: The incoming Democratic majority in the House of Representatives. And California, along with other blue states.
“Tonight’s district court ruling exposes the monstrous endgame of Republicans’ all-out assault on people with pre-existing conditions and Americans’ access to affordable health care,” House Democratic leader Nancy Pelosi, D-Calif., who is expected to become Speaker, said in a statement.
“When House Democrats take the gavel, the House of Representatives will move swiftly to formally intervene in the appeals process to uphold the life-saving protections for people with pre-existing conditions and reject Republicans’ effort to destroy the Affordable Care Act.”
The House Speaker not only controls the legislative agenda but also other House actions—including whether to go to court for or against an administration.
“The GOP Congress tried and failed to destroy the Affordable Care Act and protections for pre-existing conditions. Then, in the midterm election, the American people delivered a record-breaking margin of almost 10 million votes against House Republicans’ vile assault on health care. Now, the district court ruling in Republicans’ lawsuit seeks to subvert the will of the American people,” she continued.
“While the district court’s absurd ruling will be immediately appealed, Republicans are fully responsible for this cruel decision and for the fear they have struck into millions of families across America who are now in danger of losing their health coverage.”
California Democratic Attorney General Xavier Becerra called O’Connor’s decision “an assault on 133 million Americans with preexisting conditions, on the 20 million Americans who rely on the ACA for healthcare, and on America’s faithful progress toward affordable healthcare for all Americans. The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court. Today’s misguided ruling will not deter us. Our coalition will continue to fight in court for the health and wellbeing of all Americans.”
Q: Is there a timetable for all this?
A: Not yet. But don’t be surprised by a quick appeal of O’Connor’s ruling by the Dems. After all, they ran—and won in the November election—on the ACA and on preserving its coverage for people with pre-existing conditions, such as diabetes.
And despite the conservatism of the appeals court in New Orleans, the Trump Justice Department may try to skip that court and head straight for the Supreme Court. They want to kill the ACA as fast as possible, and they think they have the votes of the five male GOP-named justices in their pockets, even though GOP-named Chief Justice John Roberts upset the applecart, and the right-wing Republicans, by ruling for the ACA last time it wound up at the High Court. He was the key fifth vote for it.
Q: So, if or when the GOP kills the ACA, they’ll have a replacement waiting in the wings, right?
A: Ha, ha, ha.
Remember the closest they came to killing the ACA? The House had repealed it, and the Senate was tied. It came down to John McCain, R-Ariz., at home in Arizona bedridden with brain cancer. He got up out of his sickbed, flew to D.C., walked into the Senate chamber and turned his thumb down on repeal.
The Republicans didn’t have a replacement then. They don’t have one now. Their replacement is the mess and insurers’ greed that the ACA, however imperfectly, tried to fix. Do you really want to go back to that?
Q: So what can we do?
A: The same thing we did to preserve the ACA before McCain’s key vote. Agitate, organize, get out in the streets. Make it clear to lawmakers that even if the judges really toss the ACA, we want a health care law that is affordable and covers everybody, not just the healthy and the wealthy. Also make it clear that anyone who votes for a sham and against the ACA will be voted out in 2020. Get ready to march again.
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