WASHINGTON — A lawsuit winding through the courts could overturn Obamacare and cause millions of people to lose their health insurance, but Senate Republicans say there is nothing to worry about because Congress will come to the rescue.
In interviews with over a dozen Republican senators, most said they believed Congress is up to the task of passing a new health bill if the Affordable Care Act is overturned by the Supreme Court, though there exists no evidence to date that Congress is actually up to the task. Several said the ACA getting struck down would be a good thing because it would force Congress to come to an agreement.
“It would be noisy and loud, but it would need to be done. Congress only seems to get things done when they have to, so this would be one of those ‘have to’ ones,” said Oklahoma Sen. James Lankford.
It’s a scenario that has grown more realistic month by month. The Trump administration and 20 Republican-led states are arguing in court that the entire Affordable Care Act should be tossed out. One federal judge has already sided with them, and earlier this month they presented arguments to what appeared to be a receptive panel of judges at the 5th Circuit Court of Appeals. It is widely expected to be appealed to the Supreme Court either way, setting up a possible climactic decision in 2020.
The fight over Obamacare went all the way to the Supreme Court in 2012, and some provisions were struck down. But in a landmark 5–4 ruling, with Chief Justice John Roberts serving as the swing vote, the court upheld the law’s individual mandate. The new lawsuit is even broader with Republican lawyers pushing for every bit of the 900-page law to be tossed out now that Congress has repealed the individual mandate, arguing that without it the rest of the law is unconstitutional without it.
The GOP argument is that Obamacare disappearing would be so catastrophic — regulated markets would collapse, millions of low-income people would lose Medicaid, insurers could once again deny coverage to people with preexisting conditions — that Congress would have no choice but to set aside their differences and pass a replacement.
“One thing I’ve learned in eight and a half years here is you need almost a crisis to concentrate the minds and actually accomplish something, so hopefully we’d be able to do that,” said Sen. Ron Johnson.
There would be obstacles. Congress would have to reach a deal that Senate Republicans, President Trump, and House Democrats led by Nancy Pelosi could all agree on. The two parties are pushing in wildly opposite directions on health care, and this crisis could be dropped on them during the throes of a presidential election. There has been no movement since Trump took office to fix even smaller parts of the ACA. Sens. Lamar Alexander and Patty Murray spent months negotiating a bipartisan bill to stabilize Obamacare markets and lower premiums. It has yet to be brought up for a vote.
“There are already some plans out there that could be dusted off and people of goodwill could conceivably come together,” said Republican Sen. Todd Young. “I know it would be challenging and— Why are you giving me that look? I’m acknowledging the challenge!”
Asked whether they could imagine a split Congress managing to pass a comprehensive new health care system in an election year, Democrats mostly expressed bewilderment.
“Seriously? You’ve got Republican senators who actually say that with a straight face?” said Sen. Chris Coons during an interview in a cramped Senate elevator. “They had nine years to come up with a replacement plan and haven’t. I don’t find that credible.”
“Nine years!” Democratic Sen. Joe Manchin said to his Republican colleagues Mike Rounds and Rob Portman, all wedged in the elevator as well. “Oh my god, do your job, would you? Son of a bitch.”
In theory, Democrats and Republicans agree on keeping two parts of Obamacare: protecting people with preexisting conditions and allowing children to stay on their parent’s health insurance plans until age 26.
But this is meaningless. In reality, the two sides are fighting for polar opposite plans. Democrats want to strengthen and expand the Obamacare markets to bring in more people, which could drive down prices.
Republicans want to open up off-market options, allowing healthy people to move to cheaper but skimpier plans. They oppose most Obamacare regulations, as well as the taxes and subsidies that keep the individual markets stable. Obamacare regulations raise premium costs, but they also ensure that plans cover a wide range of services and people with health problems are charged at the same rate as everyone else.
GOP plans to repeal Obamacare were consistently projected to lead to millions more uninsured people and much higher premiums for people with preexisting health conditions, albeit while saving the government up to hundreds of billions of dollars. The projections sparked such a backlash that Republicans ultimately failed to deliver on their long-promised repeal of Obamacare.
Democratic Sen. Brian Schatz said that Republicans would be forced to decide between a plan that is essentially Obamacare or “some fig leaf nonsense that won’t cover anybody.” Democrats consistently rejected the idea of agreeing to a plan that would cause millions more uninsured people.
“The fantasy world the Republicans continue to live in on health care is a sight to behold,” said Sen. Chris Murphy. “They controlled every branch of government for two years and they couldn’t do anything on health care. Why on earth would we be able to restore the full protections in the Affordable Care Act with divided government?”
A group of Republicans led by Sen. Mitt Romney have started having discussions about an Obamacare replacement plan that would involve block granting for health care funding to the states. However, these talks are in early stages and there is no timeline to produce legislation, according to someone with knowledge of the discussions. The talks have not extended to Democrats, who strongly oppose block grants.
Just two Republican senators have been firmly critical of the lawsuit: Susan Collins of Maine and Senate Health Committee Chair Lamar Alexander.
Another option is that even if the Supreme Court tosses out Obamacare in 2020, the Trump administration could ask the court to delay the ruling taking effect until after the presidential election. This would set up an election where the White House and both chambers of Congress are up for grabs at a time when the health insurance of potentially tens of millions of people is on the line.