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HHS reports that 11.3 million Americans were enrolled in health care plans through Obamacare as of February, and another 14.8 million people newly enrolled in Medicaid through the law’s expansion of eligibility as of December. There are 3.9 million Medicaid-enrolled adults who would have been eligible even before the ACA but weren’t aware, and have enrolled following “enhanced outreach, streamlined applications, and increased federal funding” because of the law. Finally, 1 million people were enrolled in Obamacare’s Basic Health Program option, which covers people whose incomes are just slightly too high to qualify them for Medicaid.
When the Supreme Court heard the challenge (which remains absurd and should never have advanced this far, but that’s another story), the pandemic was raging, the vaccines were still more than a month away from people’s arms, and Joe Biden had just won the presidency. The House was going to stay in Democratic hands and the fate of the Senate wasn’t clear because of the run-offs for both Georgia seats.
The court seemed skeptical, at best, of the plaintiffs’ arguments that the law should be struck down. Two conservatives, Chief Justice John Roberts and Justice Brett Kavanaugh, were least friendly to the arguments by the Trump administration and Republican states. Here’s Roberts poking a hole in the specious argument from Texas that because the Congress zeroed out the individual mandate in its 2017 tax law, the whole law should fall. “I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts told Kyle D. Hawkins, the Texas solicitor general taking the lead for the states.
“I think, frankly, that they wanted the court to do that. But that’s not our job.” Of course they wanted the Court to do it—that’s the whole point of Mitch McConnell’s past four years of court packing under Trump. The other skeptic was Kavanaugh who agreed with the lawyer for the House, which stepped into defend the law, that the individual mandate was easily severable from the rest of the law, meaning it was essentially a stand-alone provision that could be taken out of the law without the rest of it crumbling. “I tend to agree with you this is a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place,” he told Donald B. Verrilli Jr., the lawyer for the House of Representatives.
With those two, provided they don’t change their minds, there would be five votes to uphold the law. But a funny thing has happened since them. What seemed to be pretty clear-cut has been dragged out. The court has released a bunch of decisions from its April hearings, but still not this one from November—this one or a major LGBTQ rights case. That suggests there’s more controversy among the nine justices than we thought. Or it suggests that every justice wanted to get their say in about the law. Or it suggests nothing other than it’s a bit of housekeeping they haven’t gotten around to yet. Whatever the cause, the reassurance that the law remains safe after oral arguments has turned into head-scratching as to the delay.
This poses, again, a question for the 50-50 Senate and for the usual suspects: Democrats Joe Manchin and Kyrsten Sinema. Right now, by refusing to reconsider the filibuster, the two are giving those six— or even five, if you don’t want to count Roberts—conservatives on the Supreme Court just a little be more leeway to do their worst. Because there sure aren’t 10 Republican senators who will be volunteering to be the ones not to achieve the primary Republican goal of the last decade: repealing Obamacare.
Even if it means 31 million people losing their coverage. Even if it means the loss of coverage for preexisting conditions for every American with health insurance. Even if it means tens or hundreds of thousands of people potentially losing everything because of a health crisis. Republicans have proven time and again that they have no problem reverting to that status quo. The question right now is how that 50-50 Senate—and specifically, the two Democrats holding out against filibuster reform—will respond.
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