Even before President Trump formally announced his nominee to replace the late Ruth Bader Ginsburg on the Supreme Court, Democrats made clear they would make the confirmation all about health care. Hours prior to Trump nominating Judge Amy Coney Barrett to replace Ginsburg, Democratic National Committee Chairman Tom Perez claimed that “Health care is on the ballot on November 3. Health care is on the docket November 10. And we are going to remind voters every single day.”
Democrats want to portray both Barrett’s confirmation, and Trump’s re-election, as existential threats — both to Obamacare, and to the health coverage of millions of Americans. But if the Obamacare lawsuit pending at the Supreme Court poses such a grave threat, wouldn’t a Joe Biden Administration and a Democratic Congress take action to try and thwart such litigation?
The question practically answers itself. It seems highly probable, if not certain, that a Biden Administration and a Democratic Congress would take immediate action to short-circuit the Obamacare suit. And while they won’t say it publicly before Nov. 3 for both political and legal reasons, that dynamic makes it highly likely that Democrats would reinstate an individual mandate to purchase health insurance early next year. (RELATED: White House Preps To ‘Fiercely’ Defend Amy Coney Barrett During Confirmation Battle)
The Latest Obamacare Lawsuit, Explained
The suit that the Court will hear the Tuesday after the election arises from Chief Justice John Roberts’ 2012 opinion in NFIB v. Sebelius. In that ruling, the chief justice said that Congress did not have the power under the Constitution’s Commerce Clause to require individuals to purchase health coverage. He did however find a requirement to purchase coverage a constitutional use of Congress’ taxing power, even though the text of the law itself called the mandate a “penalty” and not a tax.
In 2017, however, Congress set the individual mandate penalty/tax to $0, beginning in January 2019. A series of states led by Texas, along with the Trump Administration, subsequently filed suit, believing that the change makes the mandate no longer a tax and therefore unconstitutional.
In theory, striking a mandate that collects no revenue would have little to no impact on how Obamacare does or does not function. But the states and the Trump Administration have gone further, arguing that the text of the statute makes the mandate integral to the functioning of the entire law, and that Obamacare cannot stand if the Court finds the mandate unconstitutional. Other conservatives (including this one) have found that argument unpersuasive; because Congress set the mandate penalty/tax to $0 in 2017 while keeping the rest of the law unchanged, unelected judges should not overturn lawmakers’ judgment about whether the law could stand without the mandate.
Vacancy Creates Uncertainty
Prior to Ginsburg’s death, it appeared unlikely that the court would strike down Obamacare. All five justices who upheld the law in 2012 remained in place, and the possibility that one would suddenly switch positions seemed remote. Indeed, while the court does not release such details publicly, conventional wisdom assumes that the Court’s four liberals voted to hear the case early — proceedings could have dragged on for years more at the Fifth Circuit Court of Appeals — precisely because they wanted to uphold the law, and thwart Texas’ challenge, at the earliest possible opportunity.
Ginsburg’s death makes the liberals’ likely gamble look a lot more risky, and Obamacare’s fate more uncertain. It’s still possible that Barrett or one of the other four conservative justices could join Roberts and the three remaining liberals to uphold the bulk of the law, even if they strike down the individual mandate in the process. But Ginsburg’s death makes that outcome far from a cinch.
Will Congress Weigh In?
The increased stakes for Obamacare, coupled with Democrats’ adamant desire to defend the law, raises an obvious question: What could a Biden Administration and a Democratic Congress do to thwart the Court from striking down the law?
In theory, if Biden wins and Democrats retake the Senate in November, they could act in several different ways. They could try to repeal the individual mandate altogether, thus proving that Congress intended for the rest of the law to remain intact even if the mandate disappears. They could re-enact the law — either before or after the Court struck it down — to make the same point. They could even try to strip the court’s jurisdiction over the entire Obamacare case.
But these options would face their own obstacles. Stripping the Supreme Court’s jurisdiction over a case pending before it looks like an extreme measure — one branch deliberately trying to silence the decisions of another. Moreover, all of the above possibilities presume that Senate Democrats eradicate the legislative filibuster — a move that, while growing in popularity on the Left, may not command enough votes from moderate Democrats to succeed. (RELATED: Ben Carson Defends Donald Trump’s Healthcare Record)
Instead, the likeliest, and fastest strategy would involve using a budget reconciliation bill to reinstate Obamacare’s individual mandate. Under the Congressional Budget Act of 1974, budget reconciliation bills require a simple majority—a Senate Republican minority could not filibuster the measure. As a result, Democrats could re-enact the individual mandate with 51 votes under existing Senate procedures, just as Republicans used those same procedures to set the mandate penalty/tax to $0 in 2017.
While more aggressive strategies could divide Democrats, reinstituting some kind of mandate tax would likely unify the entire party. Democrats might debate whether to revive the original mandate tax included in Obamacare — a penalty that cost $695 or 2.5% of income, whichever greater, once fully phased-in—or some smaller levy that would raise just enough revenue to ensure the provision functions as a (constitutional) tax. Either way, virtually all Democrats would view this option as preferable to the possibility of the Supreme Court striking down all of Obamacare.
Moreover, because Congress takes office 17 days before the President, a new Congress with Democratic majorities in both the House and Senate could re-enact the individual mandate virtually immediately. In 2017, Republicans in Congress passed a budget resolution on January 12—eight days prior to President Trump’s inauguration—intending to set the stage for passage of an Obamacare repeal bill under budget reconciliation.
Disagreements among Republicans meant the repeal bill never passed, but Democrats could use a similar strategy to re-enact the individual mandate. In fact, with an aggressive timetable, Democrats could have a mandate bill ready for Biden to sign on January 20, Inauguration Day. With the Supreme Court not likely to rule on the Texas Obamacare suit for months after the November 10 oral arguments, Democrats in Congress could act fast enough to render the case moot before the Court issues its verdict.
Democrats’ Sounds of Silence
But if Democrats seem virtually certain to act after the election, they seem just as likely to avoid telegraphing their strategy prior to Nov. 3. Two rather obvious political reasons, and a less obvious legal one, suggest that the Biden campaign and Democratic candidates will try to avoid questions about reimposing the individual mandate if at all possible.
For starters, Democrats want to use the Supreme Court fight over Obamacare to motivate (or scare, depending on one’s perspective) Americans to vote for them. Pointing out that Congress could end up acting to render the lawsuit moot would reduce the imperative, and depress voter turnout.
More importantly, Democrats won’t want to highlight that, to save all of Obamacare, they will likely re-enact a highly unpopular part of the law. The individual mandate aroused voters’ ire for multiple reasons: It represented an unprecedented intrusion into people’s lives — government telling people what to buy — while raising taxes on working class families. (RELATED: Trump Delivers On Obama’s Broken Health Care Promise)
During his presidential campaign, Biden has pledged not to raise taxes on anyone making less than $400,000 per year. Yet Internal Revenue Service data show that in the mandate’s last year, households with less than $50,000 in adjusted gross income paid over half of all the mandate taxes collected. Democrats re-enacting the individual mandate would break Biden’s promise not to raise taxes on the middle class — and given the way Biden himself avoided paying nearly $120,000 in Obamacare taxes, it would raise voters’ ire on multiple levels.
Undermine the Lawsuit
Finally, Democrats don’t want to talk about re-enacting the mandate because they might not win Nov. 3. Biden might not capture the presidency, or Democrats could come up short of a majority in the Senate. Telegraphing a legislative strategy now — before the party knows whether or not it will have the ability to bring it to fruition — could undermine the case before the Supreme Court.
In theory, House Speaker Nancy Pelosi (D-CA) and House Democrats could have spent the past year-plus passing legislation related to the lawsuit. They could have passed a bill repealing the individual mandate entirely, or reinstating the mandate tax. But Pelosi likely has not brought any such legislation to the House floor for tactical reasons. She knows that unless the bill gets enacted into law, Texas and the plaintiff states will use it against her — viewing it as an admission that the mandate is unconstitutional, and that the Supreme Court should strike down Obamacare in its entirety. But the silence prior to the election doesn’t make Democrats any less likely to act should they win control of the White House and Congress Nov. 3 — far from it.
Democrats Will Act
Yogi Berra famously remarked that “It’s tough to make predictions, especially about the future.” But in this case, the future seems obvious. If granted a majority Nov. 3, Democrats will act to intervene in the Obamacare lawsuit — most likely by reinstating the individual mandate. They have multiple reasons for not telling voters of their intentions prior to the election, but they will act just the same. And the American people, who did not agree with the way Democrats enacted Obamacare against their will ten years ago, may not like the way in which the party springs to enact a middle-class tax increase as one of their first moves in office.
Mr. Jacobs is Founder and CEO of Juniper Research Group, and author of the book The Case Against Single Payer. He is on Twitter: @chrisjacobsHC.