Jim Geraghty of National Review and Greg Corombos of Radio America discuss new polling showing public perception dropping for businesses that are publicly breaking ties with the NRA, due entirely to a massive plunge in favorability among Republicans. They also breathe a sigh of relief as Republicans in Arizona’s eighth congressional district reject the frontrunner in the primary after the married minister was caught exchanging inappropriate texts with a female staffer. And they wish the best of luck to 20 state attorneys general who argue that all of Obamacare should be declared unconstitutional now that the tax provision that saved it at the Supreme Court in 2012 has been scrapped in the new tax law.
The recent tax cut legislation also puts an end to penalties for failing to buy health insurance, a development 20 states now argue should render the rest of Obamacare unconstitutional.
Led by Texas Attorney General Ken Paxton, the states filed suit in federal district court in Fort Worth on Monday, asking for an injunction against continued enforcement of the Affordable Care Act and, ultimately, for the law to be struck down.
President Trump and Republicans often assert that the tax bill repealed the individual mandate, but that’s not exactly correct.
“It made the individual mandate a zero. It zeroed it out, which is what they could do because the Supreme Court had declared the individual mandate a tax but it didn’t strike the language from the statute,” said Rob Henneke, a former colleague of Paxton’s who is now general counsel at the Texas Public Policy Foundation.
“So part of the argument that the states have here is that because the individual mandate is set at zero, it is not performing the functions of a tax and therefore cannot still be construed constitutional by the Supreme Court under the taxing powers of Congress,” said Henneke.
And why is that? In 2012, despite ruling that the law violated the Commerce Clause of the Constitution by forcing Americans to purchase a product, Chief Justice John Roberts saved the Affordable Care Act by declaring the the individual mandate a tax, which is within the powers of Congress.
Henneke says without that rationale, Obamacare collapses.
“The whole crux of that regulatory scheme rests on the essential component of being able to compel Americans to purchase health insurance or pay this tax penalty. Now that that one card has been pulled out of that house of cards, the states argue that the entire regulatory scheme collapses,” said Henneke.
Henneke admits that the justices seem very reluctant to confront Obamacare again, but he says the states are hoping Roberts will reverse course once he’s confronted with his own words.
“In this situation, it is the Supreme Court’s own words in the NFIB v. Sebelius case, where they point to the individual mandate as the key component in what made the Affordable Care Act constitutional,” said Henneke.
Another big question, says Henneke, is whether the defendants will put up much of a fight this time around.
“It remains to be seen what position this administration and the Department of Justice is going to take and if and how they are going to defend the law.
“The president has been very critical of the Affordable Care Act. It’s been a cornerstone of what he campaigned on. Are they really going to disagree with the 20 states that have challenged the constitutionality of this law or do they agree with the argument presented by the states? ” said Henneke.
He says it’s also possible that this case could make it through the system pretty quickly.
“[The states] are asking for a court to enjoin the Affordable Care Act, to have a court order that would stop that law from continuing. That is the ultimate relief that is sought in the lawsuit. but stay tuned. We may see those states come to court earlier and ask for a preliminary injunction to stop the Affordable Care Act while the lawsuit goes on,” said Henneke.
“If that happens, then that could be a decision that moves up through the court system much, much faster than the three or four years it takes a lawsuit to normally get through the trial court,” he added.
Republicans succeeded in repealing the individual mandate in the 2010 Affordable Care Act as part of the recent tax reform package, but a leading health care expert urges President Trump and members of Congress to do even more this year to bring financial relief to Americans saddled by high premiums and deductibles.
Galen Institute President Grace-Marie Turner has been on the front lines of the health care debate since before the Clinton administration attempted to give government a greater role in the sector in the 1990’s. A fierce critic of the Affordable Care Act, better known as Obamacare, Turner is relishing how the individual mandate was sent to the scrap heap starting in 2019.
“The lovely irony is that the least popular provision of Obamacare was repealed in the tax bill. It’s a bit of a touché to the Supreme Court,” said Turner, noting that the court upheld the individual mandate as constitutional only if it was considered a tax.
Beyond the political and legal drama, Turner says the mandate improved nothing and was a major burden on people.
“It was ineffective. It was not doing what it needed to do. Health insurance was so expensive that it was driving people away from policies. Even with the tax penalties, people still found it was cheaper to pay the penalties than to buy this expensive coverage,” said Turner.
“The people who were most effected by these penalties were people making less than $50,000 a year. It was backfiring from all perspectives,” said Turner.
As a result of the mandate being ineffective, Turner does not expect costs to rise noticeably when people can refuse to buy health coverage with no penalty next year.
As Congress was voting the tax bill into law, President Trump suggested in comments to reporters that ending the individual mandate was akin to repealing Obamacare.
“The individual mandate is being repealed. When the individual mandate is being repealed, that means Obamacare is being repealed because they get their money from the individual mandate,” said Trump on Dec. 20.
Turner says Trump is right to be excited over nixing one of the most burdensome aspects of Obamacare, but she says Trump and Republicans in Congress need to stay focused on even more health care policy changes.
“There’s still lots of things on the books. We’re spending hundreds of billions of dollars still on subsidies for people who may decide that they would rather purchase a different kind of coverage.
“All the rules and regulations are still on the books about the kind of coverage that we have to purchase, the expansion of Medicaid to the point where many states are finding they can’t begin to afford their share of the costs of Medicaid; all of that is still on the books,” said Turner.
And Turner know Trump is fully aware of this, as evidenced by his impending plan to offer expanded temporary health insurance. The Obama administration allowed only one-time, three-month temporary insurance policies for people between jobs or going through other transitions. The Trump plan will approve year-long policies that can be renewed year after year.
Trump is also expected to give the green light to association health plans through executive orders in the coming days. Turner say this will allow smaller companies that share a similar focus to band together so employees can be offered plans at competitive rates.
“Let’s say you’re a small contractor or you run a barber shop or a beauty parlor. You really can’t afford to compete with the big guys in offering good health insurance to your workers. But if you were able to aggregate your policy with a lot of other similar businesses, then you can get the economies of scale. You could get more choices for your employees,” said Turner.
She believes getting Washington bureaucrats out of health care also ought to be a top legislative priority.
“Give states a lot more authority in being able to approve the kind of health insurance policies that people want to buy, to allow the market to work to bring more players into the market. In many parts of the country, people are still only going to have a choice of only one plan. That’s not a choice,” said Turner.
Turner admits Republicans will be less motivated to address health reforms in 2018 since they repealed the mandate in the tax bill and want to avoid a repeat of of their Obamacare failures in 2017.
But she says that is not an option and voters will demand results.
“If Republicans don’t act, they are going to be on the defensive,” said Turner. “I believe the voters are going to insist they take action this year.”
She says Republicans have about six months to get these reforms through Congress and onto Trump’s desk, otherwise the improvements will not appear in premium forecasts just weeks before Election Day.
Jim Geraghty of National Review and Greg Corombos of Radio America cheer House and Senate passage of tax cuts and tax reform, noting the vast majority of Americans will see bigger paychecks while the Obamacare individual mandate gets repealed and energy exploration in the Arctic National Wildlife Refuge is given the green light. They also recoil at reports that Senate Republican leaders may have agreed to Obamacare bailouts and taxpayer-funded abortions in exchange for Sen. Susan Collins voting for the tax bill. And they discuss Rosie O’Donnell offering two million dollars apiece for Collins and Sen. Jeff Flake to vote against the tax legislation.