The latest Obamacare ruling is part of a larger conservative attack on democracy

[babylonsister]

The latest Obamacare ruling is part of a larger conservative attack on democracy
“Populism” is not the problem
By Matthew Yglesias@[e-mail] Dec 15, 2018, 11:01am EST


The Friday night judicial ruling that, if it stands, will cost millions of people their health insurance inflicting untold physical, emotional, and financial harm on some of the most vulnerable people in the country came from Texas. But the legal theory on which the ruling was based came out of Madison, Wisconsin where a few years back Governor Scott Walker and the state’s GOP legislature created a new Office of Solicitor General to pursue this kind of high-stakes litigation.

A bright, funny young man named Misha Tseytlin was hired to do the job.

snip//

The GOP legal theory: Congress accidentally repealed the ACA

The Affordable Care Act was legitimized in the American political system three separate times. First, it was passed by two houses of Congress and signed into law by Barack Obama. Second, the Supreme Court ruled that contrary to conservative legal theories the individual mandate was a legitimate use of congress’ authority to tax. Third and most important, when congress considered Affordable Care Act repeal in 2017 they ultimately wouldn’t go for it.

Crucially, the kind of massive rollback of Medicaid that Paul Ryan said he’d been “dreaming of” since he was in college “drinking out of kegs” was a nonstarter in the Senate where many Republicans represented states that had benefitted from Medicaid expansion. So they ended up instead putting together a narrower “skinny” repeal bill that came close to passing but ultimately failed due to three GOP defections.

Then months later, with repeal having fallen by the wayside, Republicans passed a tax bill whose main purpose was to cut rich people’s taxes but which also reduced the mandate penalty to $0. Presumably if Republicans had wanted to vote for a bill that also repealed the ACA’s Medicaid expansion, rescinded its exchange subsidies, and undid its suite of regulatory changes they would have written a bill like that. But they considered a bunch of bills that would have done some of those things back in 2017 and the senate rejected them. What they did instead was the tax bill.

But Tseytlin’s theory is that since the mandate penalty is now $0 it is no longer a tax. But since the mandate is in some sense still on the books, it now exists as an unconstitutional regulation. And since the bill has no severability clause, the existence of this one unconstitutional provision — a regulatory mandate with no penalty or enforcement mechanism — the whole thing is unconstitutional.

In effect, he argues, Congress — having considered repeal and rejected it — then repealed the whole bill a few months later. By accident. Whoops!

Then Republicans started lying about it

The idea of striking down a law in this way is almost comically undemocratic.

But the accountable, elected arms of the American political system do have easy ways to push back. For starters, the state attorneys-general who were pushing for this unpopular repeal scheme had to face the voters.

Josh Hawley, the attorney-general of Missouri, for example was in the midst of trying to get himself elected to the US Senate. His opponent, Claire McCaskill, quite naturally slammed him for his legal efforts to strip Missourians of key ACA regulatory protections — most of all the rules barring insurance companies from discriminating against patients with preexisting conditions. Hawley, however, cooked up an easy retort to this charge by running ads that lied about his position. He won.

Indeed, Republicans all up and down the country started misleading on this subject.

Which after all they had to do. Because even if for some narrow reason you buy Tseytlin’s legal argument, the “problem” had a super-easy legislative fix this whole time. Simply make the mandate formally repealed and/or make the clause severable from the rest of the legislation and the whole strategy collapses. No accidental repeal after all! But Republicans never acted on any such notion because they were hoping courts would throw the whole law out. And Republicans dealt with the unpopularity of that position by just lying to the voters about what they were doing. And while those lies weren’t enough to save the GOP House majority, Hawley did successfully lie his way into a Senate seat — as did Rick Scott and several other GOP challengers. And then in Wisconsin things went full circle.

more...

https://www.vox.com/2018/12/15/18141768/obamacare-unconstitutional-democracy-misha-tseytlin

[empedocles]

1. Amazing how the Fedralist Society has gotten away with what they have.

Generally regarded as a respected 'influential' legal organization.

Actually its a far right, anti-democracy, elitist cabal. The current far right, 'Robber Baron' wing of the SCOTUS is all Federalist. So was crappy Scalia. It was formed to fight liberal Supreme Court decisions - especially the Civil Rights decisions of the '60's.

[empedocles]

2. $18,000,000 annual budget - funded by the usual suspects Koch, Bradley, et al

[beachbum bob]

3. If GOP thought 2018 was bad for them, 2020 will be 10x worse if pre-existing coverage goes away

by costing 5x-10x more to have it.

I see NO path for GOP to have any healthcare bill in place that allows ALL Americans with pre-existing conditions being able to have it covered at no additional cost to them