OPINION

JOHN BRUMMETT: Game of political charades

With federal court "justice" often a partisan political proposition, it's possible a three-judge panel of the 5th Circuit appeals court in New Orleans soon will declare the Affordable Care Act unconstitutional.

Two Republican-nominated judges and one Democratic-nominated one will decide. Do the math.

If so, the matter almost assuredly would be stayed while it goes to the U.S. Supreme Court--again--where four Republicans would vote to throw out the ACA and four Democrats would vote to keep it.

That would leave the chief justice, John Roberts, to confront, as before, whether he wants his court to make its place in history by undoing health-care reform. I think not, because he has a sense of judicial responsibility.

All of that is despite statements by legal scholars that the lawsuit in question against Obamacare is frivolous. The Trump administration, speaking of frivolous, has refused to defend the law, though it has nothing on tap to replace it.

The two Republican judges hearing the case last week were decidedly cranky toward the law, which doesn't always signal an outcome.

Perhaps a likelier outcome, legal experts say, is that the appeals court would vote 2-to-1 to affirm the lower court's ruling against Obamacare but remand the case for the local federal judge in Texas to rethink the scope of his ruling--to consider whether everything about Obamacare would have to go, or only parts.

Either way, a favorable ruling but one buying time would serve the real, and ever-cynical, Republican purposes.

This is a relatively simple matter both politically and legally.

Politically, Republicans must feed the Obama-hating base by having its pandering right-wing state attorneys general such as our Donald Trump-worshipping Leslie Rutledge--who signed Arkansas onto this case--persist in the supposed pursuit of ridding the country of the radical menace that Obamacare supposedly is.

In reality, the Affordable Care Act is the pragmatic position between Republicans who oppose government solutions and the new band of Democrats who profess to want to do away with any form of private health insurance and impose a government plan that would not even allow supplemental coverages.

The Republican purpose is to produce headlines saying they've gutted Obamacare, but not really gutting it. A high percentage of the GOP base routinely falls for that kind of thing.

As Senate Majority Leader Mitch McConnell, the prince of cynical partisanship, was saying last week, there's nothing to worry about because this lawsuit is far from final resolution.

As a simple legal matter, it's this way: The first lawsuit against the ACA sought to have it invalidated on the argument that the penalty on tax returns for not obeying the mandate to buy health insurance was unconstitutional. But Roberts, breaking the 4-4 partisan deadlock, ruled that the penalty was in effect a tax, clearly within the prescribed authority of Congress.

So now, Republicans in Congress have axed the penalty in an incidental line of the big tax-cut legislation. And now, they're saying the entire law is invalid because the tax was Roberts' justification, but the tax no longer exists.

Consider: The first Republican argument was that the law was illegal because of the penalty on the mandate. So now, we have no penalty. And the new Republican argument is that the whole law is illegal because the illegal part got taken out.

It's utter nonsense. The law is still working without the tax. Premiums are still much too high, but that's mainly because Republicans resist compliance with its goal of universal enrollment.

If the mandate has to go, fine. There's no real mandate now. But there's no reason to invalidate anything else in the vast law.

Nonetheless, the Republican federal judge in Texas used the argument to declare illegal all of Obamacare--the minimum benefits, the parental coverage for youths up to 26, the equitable treatment of pre-existing conditions, and the Medicaid expansion that even Asa Hutchinson embraced and that has so well-served Arkansas.

Without a stay, we would have, all of a sudden, diseased people without guarantees of equitable coverage, kids up to 26 without benefits, Medicaid expansion kaput, UAMS and rural hospitals on bankruptcy spirals and the Arkansas state budget with a big hole in it.

Hutchinson has explained with Clintonian creativity that he supports the lawsuit against Obamacare so that Congress could construct a new Medicaid expansion giving the states the clear flexibility to impose his so-called work requirement now axed by a Democratic federal judge in Washington.

In truth, Asa's worst nightmare is that the New Orleans circuit invalidates all of the ACA and there is no stay, leaving him to depend on the Republican U.S. Senate to re-impose Medicaid expansion and the Nancy Pelosi House to allow a work requirement in it.

UAMS wouldn't have money to pay its light bill, much less build this $156 million electric-generating plant.

The medical center could always send its bills over to Leslie Rutledge.

CORRECTION: An earlier version of this story listed the wrong program name for the health coverage expansion. it was Medicaid.

------------v------------

John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.

Editorial on 07/14/2019

Upcoming Events