Supreme Court may get to decide Obamacare fate before 2020

Obamacare enrollment dips only slightly despite Trump’s moves
Healthcare.gov
The federal judge who declared the Affordable Care Act's individual coverage mandate unconstitutional earlier this month issued an order on Sunday saying despite his previous ruling the law can remain in effect pending appeal.

A federal appeals court on Wednesday granted a Trump administration request to expedite oral arguments in a case challenging the legality of the Affordable Care Act.

The new time frame — with arguments in early July — means that the fate of Obamacare could come before the Supreme Court next term, with an opinion rendered by June of 2020 in the heart of the presidential campaign.

As in 2016 and the 2018 midterms, health care has already emerged as a core issue, though there are fissures in both parties. Congressional Democrats have rallied around Obamacare, while some of the party’s presidential nominees are supporting “Medicare for All” plans that would offer universal, government-backed health coverage.

President Donald Trump, who campaigned in 2016 on repealing the law, has promised that Republicans will pass a “really great” health care plan after the 2020 election, although none has been proposed.

The administration last month sided with Republican-led states that are pushing for the law to be invalidated by the courts.

Attorney General William Barr said Wednesday he believes the Justice Department’s decision not to argue in favor of upholding the Affordable Care Act is a “defensible legal position to take.”

Initially, the Trump administration argued that two key provisions of the law that protect people with pre-existing conditions could no longer be defended, but the rest of the law could stand. But after a district court ruled in December 2018 that the entire law should be invalidated, the Justice Department changed its position and argues the district court ruling should be upheld in full.

As the administration debated its litigation strategy, Barr at first opposed to fully striking down the law. On Wednesday, he suggested that he is ready to back the administration’s position.

When California Democratic Sen. Dianne Feinstein pressed on why Barr, as attorney general, didn’t think it was his “duty to defend” the current law, Barr doubled down.

“Well, the law was originally upheld because the (individual) mandate was upheld as a tax,” Barr said of the 2012 Supreme Court decision that upheld the law.

“Once the penalty was removed, the financial penalty was removed, that provision could no longer be justified as a tax which means that it would have to fall. So the mandate fell,” he added, referring to Congress’ decision in 2017 to effectively remove the penalty for not having insurance. “Then the question becomes if the mandate falls, even though there was no penalty attached to it, what’s its impact on the rest of the statute? Four of the justices in the (2012 case) felt that the whole statute had to fall. So, as I said before you arrived, senator, you know at the end of the day, I felt that this was defensible legal position to take.”

Feinstein also pressed Barr on who in the administration changed its stance.

“Is this determined by the White House?” she asked.

Barr said that it was “determined by the process within the executive branch” and a “number of different players.”

“Well, I assume you wouldn’t take this position unless this is what the President wanted,” Feinstein added.

“Well — that would be a safe assumption,” Barr said.

The administration’s latest court filing came after months of heated internal debate that pitted Barr along with Health and Human Services Secretary Alex Azar against acting White House chief of staff Mick Mulvaney and officials aligned with him, a source close to the White House told CNN at the time.

Overturning the law would have far-reaching consequences — way beyond disrupting coverage for the millions of people who get their health insurance on the exchanges or through Medicaid expansion.

Obamacare saves senior citizens money on their Medicare coverage and prescription drugs. It lets many Americans obtain free birth control, mammograms and cholesterol tests. And it allows children to stay on their parents’ health insurance plans until they turn 26.

Because the Trump administration is no longer defending the law in court, a coalition of 21 Democratic states led by California has stepped in to do so.

“Before the ACA, 133 million Americans faced barriers to coverage because of a pre-existing condition like diabetes or pregnancy — yes, pregnancy,” California’s Attorney General Becerra said in a statement on Wednesday.

“We will be in court defending Americans’ healthcare that President Trump seeks to strip from them, ” he added.

Barr’s comments on Wednesday came after he faced a similar grilling from members of the House Appropriations Committee Tuesday on the new decision. At one point during the hearing, he told Rep. Matt Cartwright, a Pennsylvania Democrat, that concerned lawmakers should “let the courts do their job.”

Mulvaney said over the weekend that the White House could introduce a proposal “fairly shortly.”

CNN’s Kate Sullivan and Jeremy Diamond contributed to this report.