Once again, Democrats in Congress are pushing a false narrative in an effort to make President Trump look bad. This time, Democrats, led by House Speaker Nancy Pelosi (D-Calif.), are accusing the president of seeking to invalidate the Affordable Care Act (Obamacare) at a time when coronavirus cases are increasing.
While this story is yet another effort to paint the president as a heartless and evil tyrant, it is also factually wrong. The president is not seeking to eliminate Obamacare “in the midst of the coronavirus pandemic.” The effort to eliminate the unconstitutional Obamacare legislation began long ago and, if successful, it will have no bearing on coronavirus-related coverage. After all, the president recently signed legislation providing coronavirus-related coverage for uninsured Americans.
What the president does hope to accomplish is meaningful reform of the healthcare system that respects our Constitution and the concept of the consent of the governed.
Perhaps Democrats need a refresher. The constitutionality of Obamacare’s “individual mandate” was first challenged many years ago. In response to that challenge in 2012, Chief Justice John Roberts, writing the opinion of the court, affirmed the constitutionality of the individual mandate by arguing that it fell under the umbrella of the government’s power to tax.
In late 2017, however, President Trump passed a sweeping tax reform bill that included a legislative repeal of the individual mandate. As a result in 2019, the Fifth U.S. Circuit Court of Appeals ruled that Obamacare’s individual mandate was unconstitutional. As CNBC reported, the Fifth Circuit ruling held “the individual mandate is unconstitutional because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power.”
While the appeal’s court ruled on the constitutionality of the individual mandate, it did not rule on the question of whether Obamacare, in its entirety, should remain intact. In particular, the Supreme Court did not rule on the question of “severability,” which considers whether the Affordable Care Act can stand without the individual mandate, or whether the unconstitutionality of the mandate compels the repeal of the entire Act.
According to the Fifth Circuit decision:
It may still be that none of the ACA is severable from the individual mandate, even after this inquiry is concluded. It may be that all of the ACA is severable from the individual mandate. It may also be that some of the ACA is severable from the individual mandate, and some is not.
This is the question the Supreme Court will be asked to answer: given the absence of the individual mandate, should the entire law be tossed out? Texas Attorney General Ken Paxton filed a brief along with 17 attorneys general from various states arguing the answer is “Yes.” Per Paxton’s brief:
Congress declared in the text of the law that the individual mandate is the centerpiece of Obamacare. Without the unlawful mandate, the rest of the law cannot stand. Obamacare has failed, and the sooner it is invalidated, the sooner each state can decide what type of health care system will best provide for those with preexisting conditions, which is the way the Founders intended.
In response to the filing, Pelosi predictably politicized the decision and attacked the president and Republicans.
“President Trump and the Republicans’ campaign to rip away the protections and benefits of the Affordable Care Act in the middle of the coronavirus crisis is an act of unfathomable cruelty,” Pelosi said. “There is no legal justification and no moral excuse for the Trump Administration’s disastrous efforts to take away Americans’ health care,” she added.
Pelosi’s entirely predictable move to politicize a pending high court ruling may be an easy sell to her credulous base, but it has no merit. To the contrary, the ruling was in the works long before the virus was upon us and has to do with the questionable legality of the act, not pandemic strategies. In any event, the court is unlikely to hear the case until its next term begins in October.
Moreover, the president recently signed the bipartisan CARES Act legislation, which provides coronavirus-related coverage for various individuals, including those without insurance. As reported by the AP:
Under the approach detailed by Health and Human Services Secretary Alex Azar, hospitals and doctors would submit their bills directly to the government and they would get paid at Medicare rates.
Uninsured people would not be liable for costs, and health care providers would not have to ask any questions about a patient’s immigration status, an issue that’s been cited as a barrier to care in communities with many foreign-born residents.
“This says if you don’t have insurance, go get taken care of — we have you covered,” Azar said in an interview.
The money will come from a pot of $100 billion that Congress has approved to provide relief for the health care system, which is trying to cope with the high cost of coronavirus care while facing a cash crunch because elective surgeries and procedures have been put on hold. For COVID-19 patients who are covered by health insurance, hospitals and doctors accepting money from the relief fund would have to agree to not to send “surprise” bills for out-of-network services.
Therefore, Pelosi’s claim that the administration and Republicans are trying to take away health insurance during the coronavirus is just more lies.
With that said, the administration would do well to stay true to its promise to present Americans with a replacement health plan which provides coverage for those with pre-existing conditions. President Trump has promised that, in eliminating Obamacare, he would replace it with something that was better, more affordable, and that would cover pre-existing conditions. If the Supreme Court ultimately rules in favor of eliminating Obamacare entirely, the president (assuming his reelection) needs to have a strong alternative ready to present to the public.
Health insurance is an important issue, and the timing of this filing to the high court is politically risky, as Pelosi’s attempt to politicize the ruling shows. The president could ease concerns of voters and help himself politically, however, if during the campaign he presents a solid alternative to Obamacare that Americans can afford.