A lawsuit filed by 20 GOP-controlled states and supported by the Trump administration could end up becoming a serious liability for Republican candidates this November. The suit seeks to gut the remainder of the Affordable Care Act, and will go before a conservative Texas federal judge in early September, just two months before voters go to the polls to decide which party controls the House, the Senate, and dozens of influential state and local seats.
While Republicans have campaigned successfully for many years on promises and attempts to kill the ACA, the political tide has turned, and Democrats are hoping that Republicans’ participation in the lawsuit will drag them down in close races across the country.
In particular, two of the Republican attorneys general whose names are on the lawsuit — Missouri’s Josh Hawley and West Virginia’s Patrick Morrisey — are candidates in two of the most contentious Senate races. Democrats, who are bombarding the airwaves and the pages of local papers with ads and op-eds about the lawsuit, say the case will hang like an albatross around the necks of the GOP candidates.
“There’s no good time for GOP candidates to be arguing that they want coverage for pre-existing conditions to be unconstitutional,” David Bergstein, the national press secretary of the Democratic Senatorial Campaign Committee (DSCC), told TPM. “But doing so in September ensures it will be fresh on people’s minds when they vote.”
‘Frivolous and made in bad faith’
The lawsuit has been called “absurd,” “frivolous” and “ludicrous” by legal experts, even those who have supported past challenges to the ACA. Essentially, the 20 Republican attorneys general are arguing that the individual mandate is so integral to Obamacare that, because Congress repealed it last year, the rest of the health care reform law has to go too.
Professor Nicholas Bagley at the University of Michigan Law School told TPM that the lawsuit should be viewed as “a rear-guard effort” to repeal Obamacare “by judicial means,” and not as a serious legal argument.
“The whole thing is absurd. The arguments are frivolous and made in bad faith and should be rejected summarily,” he said. “When Congress repealed the individual mandate, they could have chosen to repeal the entirety of the ACA and declined to do so. So we know that they wanted to leave the rest of the law standing. That’s true whether or not a prior Congress believed that the individual mandate was essential to its proper functioning.”
The plaintiffs’ argument may not even fly with the George W. Bush-appointed Texas judge set to hear the case, though he has been a vocal critic of the ACA. Bagley notes the judge may be able to avoid the merits of the suit altogether.
“There’s a plausible claim the plaintiffs lack standing to bring this suit,” he said, referring to the GOP-controlled states. “They aren’t harmed by the lack of full ACA repeal.”
Democrats See A Winning Issue
Because the Trump administration is refusing to defend the ACA in this case, 17 Democratic attorneys general have swooped in to do so. And while a ruling in Republicans’ favor is a long shot, the stakes for Americans are very real. If the GOP attorneys general prevail, tens of millions of people with pre-existing conditions could be denied coverage or charged exorbitant premiums.
Democratic campaigns and national groups are doing everything they can to remind voters of those stakes and blast their GOP opponents — both those whose names are on the lawsuit, like Hawley and Morissey, and those who have voiced support for it, like Indiana Senate nominee Mike Braun and North Dakota Senate candidate Kevin Cramer.
Bergstein told TPM that Democratic groups have for months highlighted that the lawsuit’s goal of full repeal of the ACA is “a position that’s incredibly toxic with voters in their states.”
Earlier in August, the Senate Majority Project released a statewide ad going after Hawley for his role in the lawsuit. Hannah Hurley, the spokesperson for SMP, said the intent was to show that the case “puts families across Missouri in peril.”
Sen. Claire McCaskill (D-MO), who is fending off a challenge from Hawley, released her own video slamming him for backing the lawsuit, calling the move “offensive” and emphasizing that she is “fighting to keep protections in place so insurance companies can’t go back to the bad old days where they could deny someone coverage just because they had a cancer diagnosis 20 years ago.”
Hawley’s campaign did not respond to TPM request for comment, but he has said that despite his participation in the lawsuit, he supports requiring insurance companies to cover people with pre-existing conditions. Morissey, West Virginia’s Attorney General who is challenging Sen. Joe Manchin (D-WV) for his Senate seat, has taken a similar contradictory position, saying: “You can believe that some of the pieces, helping those who need it most, are good but still have a lawsuit to get rid of the awful policy of Obamacare.”
The state Democratic Party has worked to keep the lawsuit top of mind, hammering Morrisey in ads and statements for “using his position as Attorney General to do the dirty work for big insurance companies while throwing the people of the Mountain State under the bus.” And Manchin himself released an ad on Monday urging West Virginians to call Morissey and ask him to drop the lawsuit, a follow-up to a previous ad highlighting the plight of constituents with pre-existing conditions who could lose their insurance if the lawsuit succeeds.
Pitfalls for Republicans
Since President Trump took office, the politics of the Affordable Care Act have changed dramatically. Where Democrats previously sustained major congressional losses for supporting it, Republicans are now poised to suffer at the ballot box for their attempts to repeal it.
Not only is support for Obamacare higher this year than it has ever been, the lawsuit is striking at the most popular piece of the law — guaranteed coverage for people with pre-existing conditions. A Kaiser Family Foundation poll conducted this June found that nearly two-thirds of voters say a candidate’s support for continued protections for people with pre-existing health conditions is either the “single most important factor” or “very important” to their vote in the upcoming midterms.
“The greatest intensity in the health care conversation is around prices and pre-existing conditions coverage, so Republicans couldn’t have picked an area where they are on worse footing with the electorate,” Bergstein told TPM.
But working to repeal Obamacare, either through Congress or through the courts, is still popular with the Republican base, a group frustrated by nearly a decade of failed promises from Republicans to get rid of the law. Republican candidates for governor in Minnesota and Maine won their primaries by vowing to work to get rid of the ACA, as did Senate candidates in Wisconsin and Tennessee.
“Many Republicans are more afraid of a primary challenger than a general election challenger,” Bagley told TPM. “So far, running against the ACA has been a reliable way to fire up the base. And I don’t think they’ve recognized that trying to undo protections for pre-existing conditions going into the midterms is a huge liability for them. So they keep banging their head against the wall in a way that’s deeply counterproductive.”