Tuesday, July 09, 2019


I'm not worried about this, at least over the next sixteen months:
Obamacare’s future will once again be at stake Tuesday when a federal appeals court considers a Trump-backed lawsuit aimed at scrapping the health care law in the heat of the 2020 election cycle.

The court will hear oral arguments on whether the Affordable Care Act is no longer valid after Congress eliminated the tax penalty for not purchasing health insurance....

Should the 5th U.S. Circuit Court of Appeals in New Orleans rule against the law, that would all but guarantee the Supreme Court would again take a case directly challenging the ACA’s survival. The high court, which has twice upheld the health care law since it passed in 2010, would likely deliver a final verdict on the ACA as the 2020 campaign season ramps up.
The Roberts court won't overturn Obamacare before the 2020 elections. This is not to say that Federal Society Five like Obamacare or want it to remain the law of the land. But Roberts, at least, is playing chess. Just as in 2012, when he provided the fifth vote to uphold Obamacare, Roberts won't want to enrage supporters of the health care bill just prior to an election. He'll vote with the four liberals to keep Obamacare alive again, enraging Republican voters instead, in the hope that they'll be more likely to turn out to vote for President Trump and Senate Republicans, whom they trust to put more real right-wing ideologues on the Court. Roberts will take the heat. He's playing the long game.

It's possible that the court will choose not to hear the case (if the appellate court upholds the law), or will schedule the case so the ruling comes after the elections. Whatever happens, the Affordable Care Act won't be overturned before November 2020. Roberts is too savvy for that.

(Think about how the risk looks from the right: Overturn Obamacare and you might get a Democratic president and two Democratic houses of Congress. What happens next? Medicare for All! Can't have that!)

On the other hand, I don't trust Roberts on the census question. Two Politico analysts write:
President Donald Trump’s fight to add a citizenship question to the 2020 census is one he seems likely to lose.

Eleven days after an unfavorable Supreme Court ruling, a new team of Justice Department attorneys must persuade three district court judges that a June 30 printing deadline a previous DOJ legal team insisted had to be met no longer applies — even though, the Commerce Department said last week, the questionnaires are being printed already.

To pass muster with the Supreme Court, the new DOJ team must find a rationale that the high court will rule consistent with regulatory law and also believable — a tough assignment given that the court said in its ruling that the previous rationale was not.
Can anyone seriously argue that this precedent-smashing court will care whether the new rationale for the citizenship question is "consistent with regulatory law and also believable"? Four justices will rule in the administration's favor even if the rationale is "Because I said so, that's why." And Roberts will be the fifth vote for two reasons: He already got his "one ruling for the left, one for the right" headlines when he (temporarily) blocked the citizenship question the same day he allowed a free-for-all on partisan gerrymandering, and he knows that a ruling in favor of the question won't drive Democratic turnout in 2020, because, unlike Obamacare, this is a relatively abstruse matter that's not being followed by most voters.

The citizenship question's benefit to the GOP is much greater than the risk, so of course Roberts will give Trump's new rationale a pass. But on health care, the Affordable Care Act will survive until the election, trust me.

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