One week after Election Day, the Supreme Court is set to hear the latest legal challenge to the Affordable Care Act—and a newly confirmed conservative justice could easily usher in a decision that overturns the sweeping health-care law once and for all.
Democrats might not have the power to stop President Donald Trump’s nominee to the court from being seated before it hears that case on Nov. 10. But in the meantime, they’re working to make sure Republicans who vote for the president’s pick are tagged with the painful politics of health care.
But if Republicans are at all concerned about backlash from ramming a new justice onto the Supreme Court ahead of a high-profile case that spotlights a key weakness in the 2020 campaign cycle, they’re not showing it.
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In the Trump era, Republicans have struggled to navigate the shifting political terrain of the ACA, a program that’s grown more popular despite—or perhaps because of—their years-long crusade to get rid of it. The law was already a big part of Democratic presidential nominee Joe Biden’s case against Trump and has become a top issue pushed by Democrats against a slate of vulnerable GOP incumbents in races that will decide the Senate majority next year.
But to hear GOP senators tell it, the high court vacancy doesn’t create any political problems for them.
“This is just a campaign issue for them,” said Sen. Rick Scott (R-FL), who prevailed by a razor-thin margin in 2018 over former Sen. Bill Nelson (D-FL), who campaigned on saving Obamacare. “They ran ads against me,” said Scott, “and it didn't work.”
It’s another example, alleged Republicans, of the same Democratic playbook. “I mean, they try this, you know, every cycle,” said Sen. Josh Hawley (R-MO). “They try to say, oh my God, Republicans are going to take away your health care.”
“Health care is a double edged sword for them,” said Hawley of Democrats. “So on the one hand they're talking about massive changes to health care, whether it's Medicare for All, whether it's major changes to the employer based system that will radically upend our healthcare system. So, you know, you can't have it both ways.”
Though Republicans may cling to a chance to revive the case against progressive positions to the left of Biden like “Medicare for All,” Democrats will have an easy time framing the debate on their terms, given that the court is deciding Obamacare’s fate.
The pivotal moment for Obamacare comes as law sheds the politically toxic image it once held. For much of the past year, over 50 percent of Americans have held a favorable view of the ACA, according to a regular tracking poll from Kaiser Family Foundation. In 2018, Democrats made their effort to retake the House a referendum on health care and picked up 40 seats.
Plenty of Republicans recognize the fraught politics, even if lawmakers dismiss it out of hand.
Two Trump administration officials and another Republican close to the White House said they weren’t planning to make the potential obliteration of Obamacare a larger focus of their pre-election Supreme Court messaging because, in the blunt words of one of the officials, “we aren’t that… dumb. Nancy Pelosi would love it if we did that.”
In a possible nod to the onslaught of Democratic messaging on the subject, Trump is slated to deliver an address outlining his health-care “vision for the nation” on Thursday from Charlotte, North Carolina, the White House announced on Tuesday. To date, his vision on health care is hazy at best, consisting of a desire to repeal Obama’s signature health law without destroying its more popular elements, such as protections for people with pre-existing conditions.
Even some of the president’s most ardent allies, and strongest supporters of Trump appointing more Supreme Court justices, are publicly against nuking the Affordable Care Act in the midst of a global pandemic, arguing that the human toll of doing so at this unprecedented moment would likely be vast.
Dallas megachurch pastor Robert Jeffress, a top informal faith adviser to Trump, said on Tuesday night that though he believes “President Trump’s new [conservative] justice will be excellent,” the pastor made clear, “I think the effort to dismantle the Affordable Care Act without a better replacement plan is both bad policy and bad politics—especially in the middle of a pandemic.”
Asked if Republicans should be worried about the health-care backlash of the high court push, Tom Miller, a health care scholar at the American Enterprise Institute, had a simple answer: “Yes,” he said. “They should worry.”
“It’s already a base demographic that believes all these terrible things Republicans are doing to their health care, but it fits into the larger political context,” said Miller. “That’s part of the problem; it creates an atmosphere.”
Since failing to “repeal and replace” the law in 2017, Republicans on Capitol Hill have largely given up on the quest to get rid of it. But the case currently before the high court has forced them to confront the idea that the GOP’s years-long project to kill the law might actually succeed.
The lawsuit, brought by a group of Republican state attorneys general, argues the ACA is unconstitutional on the grounds that the law’s tax penalty for not obtaining insurance was eliminated by the GOP’s 2017 tax bill. Since that penalty undergirds Obamacare, they argue, the entire thing must be struck down.
Prior to Justice Ruth Bader Ginsburg’s death, many observers did not feel there was a serious chance the court would side with the Republican plaintiffs and strike down Obamacare. Top GOP lawmakers, such as Sen. Lamar Alexander (R-TN), have even disparaged the legal case as flawed.
But now that threat is real. Trump is expected to nominate a conservative to replace Ginsburg, which could include one who is on record criticizing past rulings in favor of the ACA. The frontrunner for the nomination, Judge Amy Coney Barrett, has been publicly critical of Chief Justice John Roberts’ 2012 ruling upholding the law. “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote in a law journal in 2017.
None of the four GOP senators asked by The Daily Beast said that past opposition to the ACA was anything close to resembling a litmus test for an acceptable nominee. That sets the issue distinctly apart from abortion, where conservatives such as Hawley have been clear that they expect Trump to nominate someone who believes Roe v. Wade was wrongly decided.
Some GOP lawmakers, in downplaying any political backlash, have said it’s impossible to game out how the court may rule on the impending lawsuit. Sen. James Lankford (R-OK) told The Daily Beast that Democrats’ claims were unfounded because they are based on predicting how Justices Brett Kavanaugh and Neil Gorsuch, who have not weighed in at length on the constitutionality of the law, might vote.
One of the few Republicans to hedge a bit on the Obamacare question was Sen. Kevin Cramer (R-ND), who said “on net, I don’t know if it’s a strength or weakness.” Cramer, who unseated a Democrat in 2018 in conservative North Dakota, said the impact is likely to shake out on a state-by-state basis.
“I can only assess what it does, you know, in a place like North Dakota or places like it. I don't know how it plays in Colorado,” he said. “I don't know how it plays in Iowa, or Arizona, or North Carolina.”
On his way back from the GOP’s Tuesday lunch to hash out Supreme Court strategy, however, Cramer reported that Obamacare politics was hardly a focal point of the meeting.
Democrats are handling the issue quite differently. Senators emerged from a Saturday caucus call, which showcased some divisions on tactics for approaching the vacancy, with a single-minded focus on the health-care stakes of the confirmation battle.
Biden, back on the campaign trail in person this week, took an early step to weave part of his policy agenda on health care into speeches in two midwestern swing states—Pennsylvania and Wisconsin—while also condemning his opponent.
“In the middle of the worst global health crisis in living memory, Donald Trump is at the Supreme Court trying to strip health coverage away from tens of millions of families and to strip away the peace of mind from more than 100 million people with pre-existing conditions,” Biden said in Philadelphia on Sunday. “If he succeeds, insurers could once again discriminate or drop coverage completely for people living with preexisting conditions like asthma, diabetes, and cancer.” The next day, during an address in Manitowoc, Wisconsin, he again criticized Trump’s role in attempting to dismantle one of the leading accomplishments from the Obama-Biden White House. “You try to take away health care from 20 million Americans in the middle of a pandemic. He’s in court today trying to get that done,” he said.
That sentiment is already being amplified throughout the Democratic ticket. Hours after Biden’s speech on Monday, Sen. Kamala Harris (D-CA), his running mate and a member of the Senate Judiciary Committee, told attendees from the California Senate Democratic Caucus during a virtual fundraiser that she considers health care to be a “huge part” of the impending court battle and advised the caucus to push that framework, according to a pool report.
The focus on health care is not new for Biden. Throughout the primary, he did not move to adopt some form of a “Medicare for All” goal. Instead, the former vice president embraced the ACA, a tactic that he’s now returning to in the final stretch of the election, and one that’s supported by elected Democrats who have shared his position publicly over the past few days.
“Let me tell you what's on my mind,” said Sen. Ron Wyden (D-OR) on Monday. “If you don't trust Republicans on health care, you shouldn't support this nominee for this seat. That's the message.”
