Alan Zendell, December 15, 2018
The people have consistently made their opinion clear in poll after poll. A Kaiser Health Tracking Poll published at the end of November showed the largest gap ever between people who view the Affordable Care Act favorably and those who view it unfavorably (53% to 40%.) A Fox News Poll last August found that more people viewed the ACA favorably than the 2017 Republican tax cuts (51% to 40%.)
Despite constant pressure from the president and the conservative wing of the Republican Party throughout 2017, the Republican controlled Congress could not muster the votes to repeal Obamacare. And when court challenges to the ACA reached the Supreme Court, Chief Justice Roberts cast the deciding vote that upheld the law as constitutional.
The key issue in the challenges was the ACA’s individual mandate provision, which required every American to sign up for a health plan or pay a tax penalty for opting out. In practical terms, once it was clear that the single payer option for some form of national health insurance wouldn’t fly politically in 2010, the ACA could never have been fiscally sound without that controversial penalty. The central point in Chief Justice Roberts’ opinion was that the tax penalty sealed the argument over constitutionality, but when the Republicans passed the tax cut law, they effectively removed that provision of the ACA by reducing the penalties to $0.00.
Last night, with the deadline for enrollment in ACA health care plans for 2019 rapidly approaching, a federal judge in Texas struck down the ACA, declaring the individual mandate unconstitutional and specifically citing the lack of the penalty for noncompliance as the reason. He also claimed that the mandate provision could not be separated from the rest of the ACA, which meant the entire law was rendered invalid. Whether the elimination of the penalty in the tax law was merely an attempt to bankrupt the ACA or part of a back-door plot that led to yesterday’s decision isn’t clear, but the result is the same.
Unable to convince the people, the Congress, or the Supreme Court to repeal Obamacare, the president used (many would say abused) his power to pack the Supreme Court with Conservative justices who he hoped would eventually reverse the Court’s earlier ruling. This is precisely why I and so many others argued in 2016 that given the ages and health of the sitting justices, a victory for Donald Trump could politicize the Court in a way that would change the legal landscape for decades.
Let’s be clear. This is not about whether the ACA is constitutional. It’s about whether Americans are entitled to affordable basic health care. If they are, given our military budget and the huge deficits that resulted from the 2017 tax cuts, there’s only one place to get the money to pay for it. That’s why this fight never seems to end.
Several State Attorneys General led by California are preparing to challenge the Texas court’s decision. There will surely be an appeal in the Fifth Circuit, and the case will almost certainly wind up in the Supreme Court again, which was really the point in the first place. When it does, the nation will see clearly whether the Court has been politically compromised.
Only extremely wealthy people and corporations have the resources to fund any kind of national health care entitlement, but both do everything possible to avoid paying taxes. They continually using their wealth to assure that the burden of providing health care for Americans never falls on them, and that’s why the very concept of entitlement to health care will come under one assault after another until it’s defeated.
I have said many times that the only reason our Founders didn’t include basic health care in the Bill of Rights was that effective health care didn’t exist in the eighteenth century. If health care had been baked into our economy from the first, we wouldn’t be fighting this battle over and over again.
The Trump presidency has created one moral crisis after another for the next generation of Americans. Trump’s supporters are attempting to change the entire philosophical basis of our governing principles. Voters clearly rejected that when they elected a Democratic majority in the House of Representatives last November, but if the Supreme Court turns out to have been politically corrupted, the checks and balances in our Constitution may prove insufficient to preserve those things that truly made America great, regardless of what Donald Trump says.
We’ll see. For now, I’ll put my faith in the integrity of the Court.