WASHINGTON — The Affordable Care Act was struck down by a federal judge last Friday, shocking many Americans including Republican members of Congress who played a crucial role in getting it tossed out.
Republican senators say they never discussed or anticipated that the entire ACA could be declared invalid when they passed legislation to eliminate the individual mandate tax penalty a year ago. A federal judge in Texas ruled that change made the mandate unconstitutional, which in turn meant the entirety of the over 900-page ACA must be thrown out.
“I never heard one senator say in doing this we’re going to repeal Obamacare,” said Sen. Lamar Alexander. This was repeatedly backed up in conversations with more than a dozen GOP senators.
Both avowed opponents of the ACA and senators who have taken a more bipartisan approach said there was no discussion at the time that their vote could bring down the wider law. “No one thought that. In fact it was to the contrary because we didn’t touch the rest of the law,” said Sen. Susan Collins, one of three Republicans who voted against total ACA repeal in 2017.
The Texas ruling has no immediate legal impact and is being appealed. It could one day end up before the Supreme Court. Normally such a ruling would bring charges of judicial overreach for overruling Congress — after all, Judge Reed O’Connor’s ruling, if it stands, would toss out measures like Medicaid expansion, pre-existing condition protections, and allowing children to stay on their parents’ insurance plans until the age of 26. Congress passed these provisions into law in 2010 and then deliberately spared them last year while tweaking the ACA.
But the decision has put Republicans in an unusual spot. Many believe Congress should have repealed Obamacare by now. Efforts in Congress failed, but this court case may now do the job for them.
“Some of us have thought the original Supreme Court ruling (that preserved Obamacare) was in error from the very beginning. So we’re not many of us too heartbroken that it’s been thrown out,” said Sen. Rand Paul.
Sen. Ted Cruz said there was no debate last year on whether repealing the individual mandate may bring down the ACA, but said that outcome could be a good thing. Cruz said it would put pressure on Congress to restart negotiations on an ACA replacement bill.
Congress has not managed to agree on any bill to stabilize or improve Obamacare, despite both sides saying they want to. While in theory the lawsuit could bring the two parties together, no one is holding their breath. Senate Whip John Cornyn said appeals to the Supreme Court will likely take the case past the 2020 election, and Congress will likely just wait it out.
“Realistically, for the next two years I think we’re going to have the current stalemate and the Affordable Care Act will remain in place,” said Cornyn.
Repealing the ACA without a replacement ready was never Plan A, but it did briefly become the plan. By summer of 2017 it became clear that Republicans could not agree on a single repeal-and-replace bill, so they tried to forge ahead on a repeal-and-figure-it-out-later plan. It was this open-ended legislation that was ultimately killed when Collins, Lisa Murkowski and John McCain voted with Democrats.
But many Republicans still support that path forward. Both parties want to preserve pre-existing condition protections, their argument goes, so repealing the ACA with enough lead time would force Congress to pass a replacement. Only this time it would be passed with significant Republican input, rather than the Democrat-only passage of the ACA.
This view is not universally held, but it is far easier to find a Republican senator who will defend — or shrug it off — the ruling than one who will condemn it. One of the exceptions is Alexander, the Health Committee chairman.
“The next step is to appeal the ruling and it’ll be overturned. I can’t imagine that the decision will be affirmed by an appellate court because obviously Congress didn’t intend to repeal all of Obamacare when it got rid of the individual mandate,” said Alexander.
The lawsuit rests on the concept of “severability.” If the individual mandate is in fact unconstitutional, can it be severed from the rest of the ACA or must the entire law fall? Most legal experts argue the mandate is severable, but Judge O’Connor ruled it is not.
The White House has refused to defend the ACA. Democratic Senators Patty Murray, Joe Manchin, and Ron Wyden said they would ask for unanimous consent for the Senate to formally get involved in the legal defense of the ACA. They are expected to be rebuffed, but Democrats in the House say they will intervene in the case once they gain control in January.