It’s an astoundingly bad statement for Republicans in Congress. It basically argues (page 43) that no matter what their intent was in passing the tax law and zeroing out the mandate, every single Republican in the House and Senate who voted for the GOP tax law also voted to abolish protections for preexisting conditions and other popular reforms, and the rest of the ACA with it. Everything. Medicaid expansion. People on their parents’ insurance until they turn 26. Lower prescription drug costs for Medicare enrollees. Essential health benefits. No discrimination for being a woman. Everything. Coverage would end, immediately, for more than 23 million people—3 million more than when the suit started because so many people have lost coverage from their jobs, because they’ve lost their jobs in the pandemic.
The arguments outside the brief are just as astoundingly dishonest as the brief itself. For example, Texas Attorney General Ken Paxton, the leading state in the challenge, tweeted: “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.” Because the Founding Fathers spent so much time arguing about health insurance policy. The White House has also resorted to just making shit up, though not quite as creatively as Texas’ finest.
White House spokesman Judd Deere said in a statement Friday that the coronavirus pandemic changes absolutely nothing about the ACA being “an unlawful failure,” and in fact the epidemic “further illustrates the need to focus on patient care.” Everyone who has a confirmed case of the coronavirus, by the way, has also contracted a preexisting condition. “It limits choice,” Deere continued, and “forces Americans to purchase unaffordable plans, and restricts patients with high-risk preexisting conditions from accessing the doctors and hospitals they need.”
There is absolutely nothing subtle or nuanced (big surprise) about this argument from the administration. The want the law completely excised, and on the flimsiest of legal arguments, reading congressional intent where it does not exist and putting forward an argument that even some of the law’s harshest critics have panned. Jonathan Adler, a conservative law professor who championed another bogus suit against the law, called this one “implausible,” “hard to justify,” and “surprisingly weak.” The Wall Street Journal‘s editorial board has called it the “Texas Obamacare Blunder.” Conservative policy wonk Yuval Levin wrote in the National Review that the suit “doesn’t even merit being called silly. It’s ridiculous.”
But it has actually reached the Supreme Court, which makes it ridiculously dangerous. Which is as apt a description for the entirety of Donald Trump’s presidency as you’re going to find: ridiculously dangerous. That’s being demonstrated every single day of this pandemic with a literal death toll.