The Department of Justice’s “absurd” and “nuts” and “empty unprincipled mess” of a legal argument against the Affordable Care Act is based on the idea that when Congress passed the 2017 tax bill, eliminating the individual mandate in Obamacare, it invalidated the whole law. Few Senate Republicans agree, and they are now in the awkward position of both staying on the right side of their president and dealing with the political fallout of a decade’s worth of trying to take people’s health care away.
“It’s an absurd argument,” Sen. Susan Collins of Maine said. “If Congress had wanted to strike down the rest of the Affordable Care Act, it would have done so. It chose not to” (putting her Fret Level at somewhere near “Guarded”). Sen. Rob Portman of Ohio tries to split the baby on Obamacare, saying that he thought the mandate was unconstitutional all the time and that the Supreme Court got it wrong back in 2012. One of the architects of the tax bill, Portman goes on to say that “that’s not what we thought was going to happen at that time [of the 2017 tax bill vote]. We thought we would get rid of a mandate that a lot people didn’t like.” Which is a very convoluted way of saying that Republicans wanted the whole ACA struck down in 2012, but didn’t want it to happen in 2017 when they were getting so much blowback from their disastrous repeal attempt, and sure as hell don’t want it to happen now after seeing the results of the 2018 election.
Sen. Lamar Alexander of Tennessee, who has worked on numerous Republican healthcare bills that wouldn’t actually replace Obamacare and that can’t get the support of the entire GOP anyway, calls the premise of Trump’s argument “far fetched—particularly the idea that anybody intended to get rid of the pre-existing conditions protections.” Sen. Bill Cassidy of Louisiana, who has also put forward doomed healthcare ideas, wants everyone to know that Republicans never, ever wanted to go after people’s protections for pre-existing conditions. “There was specific statements made by different members of the Republican side that this is not to impact coverage of pre-existing conditions,” he insists. And even Sen. Roy Blunt of Missouri says the mandate repeal was just “intended to give people more options.”
It’s easy for all these guys to sound off to reporters, but the question is what they’re going to do about it. Are any of them going to join with the Democratic House and file briefs in defense of the law? They could do that either individually or as a group. Or will they just wring their hands and write more letters that Attorney General William Barr will toss in the trash?
Every one of them deserves all of the pain this bogus, insane Trump lawsuit on health care is going to bring them between now and November 3, 2020.
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