Trump faces ObamaCare court deadline as political ground shifts

The Trump administration is expected by Thursday to file a legal brief urging the Supreme Court to strike down ObamaCare, even as coronavirus cases climb across the U.S. and soaring unemployment forces millions off employer-based health plans. 

The political ground under the latest ObamaCare dispute to reach the high court has shifted at warp speed: When the justices agreed in early March to take up the Republican-led challenge, the country enjoyed historically low jobless numbers and tallied fewer than two dozen cases of coronavirus. 

Since then, more than 2.3 million in the U.S. have been infected, unemployment has reached the highest point since the Great Depression and an estimated 27 million have lost job-based health coverage. 

The stakes for the GOP have also risen as the pandemic has claimed more than 120,000 lives in the U.S. and health care has taken on even greater electoral significance. Polls now show President Trump trailing in the presidential race and suggest that Republicans, some of whom have backed off their criticism of ObamaCare amid the health crisis, risk losing the Senate.

“It’s easy to see how Democrats can out-message the GOP: lay out the coronavirus statistics and say President Trump and fill-in-the-blank Republican candidate want to take away your health care,” said GOP strategist Doug Heye. “It’s an argument Democrats have been making for the last three or four election cycles. But when a death count is ticking up every single day, it’s going to highlight health care as an issue.”

The Trump administration is expected to file a brief backing Texas and 17 other Republican states in their push to undo ObamaCare, or the Affordable Care Act (ACA), former President Obama’s signature legislative achievement.

The Justice Department did not respond when asked if it would support the legal challenge by the Thursday deadline. But the White House has given little reason to doubt its continued support for the GOP’s longstanding repeal effort.

“We’re staying with the group, with Texas and the group. But just so you understand, ObamaCare is a disaster,” Trump told reporters last month in the Oval Office, adding, “What we want to do is terminate it.”

The ACA is credited with expanding Medicaid for poorer Americans and making private health plans more affordable for lower-income families. Health experts say the law has provided a crucial backstop for those who have lost job-based coverage during the pandemic.

As early as March, vulnerable Senate Republicans dodged questions about whether they supported the lawsuit to overturn the ACA. By May, with the twin health and economic crises in full swing, some of the law’s staunchest critics were reversing course to endorse ObamaCare as a safety net.   

Even Sen. John Cornyn (R-Texas) — who has cast 20 votes to block, repeal or defund the law and been described as “ObamaCare repeal’s top salesman” — encouraged Americans who have recently lost job-based health care to enroll in the program.

“The good news is that if you lose your employer-provided coverage, which covers about 180 million Americans, then that is a significant life event, which makes you then eligible to sign up for the Affordable Care Act — and as you know, it has a sliding scale of subsidies up to 400 percent of poverty,” Cornyn, who is up for reelection this year, told PBS Austin last month in an interview.

A spokesman for Cornyn would not say if the Texas senator still supported repeal or the ObamaCare legal challenge.

Texas and other red-state challengers notched a legal win in December when a federal appeals court struck down a central tenet of ObamaCare. The 5th Circuit Court of Appeals ruled that the law’s so-called individual mandate, which requires people to buy health insurance, was unconstitutional.

The Department of Justice had urged the court to go even further. The agency, along with the 18 Republican state challengers, argued that if the insurance mandate violates the Constitution, then the entire law should be struck down.

The Justice Department filing to the Supreme Court before Thursday is expected to ask the justices to invalidate ObamaCare wholesale. Meanwhile, the Democratic-led House has joined California and other blue states in asking the justices to reverse the lower court and preserve the law.

The Supreme Court has yet to schedule arguments in the case, which will be heard during the next term that begins in October. It’s possible the dispute over ObamaCare’s fate will be argued before Election Day, though a decision will come later.

Lindsay Wiley, a law professor at American University and an expert on public health law, said it’s likely the country will still be reeling from the long-term effects of the coronavirus pandemic at that point. She added that striking down the law under such a scenario, which would reduce Americans’ access to health care, “would be devastating for public health.”   

“We know that access to testing and treatment are lifesaving — not only for individual patients but also for slowing the spread of infection to others,” she said. “If people don’t have access to care, they’re less likely to get tested. And if people aren’t getting tested, they’re more likely to unknowingly infect others.”