Whistling Past The Graveyard: Senate GOP Pretending So Hard New Justice Won’t Kill ACA

John Roberts can’t save them now.  

GOP senators are close to putting on the Supreme Court a justice who could be the deciding vote to kill Obamacare, delivering to the Republican Party its decade-long goal – and exposing it to the political repercussions previous failures have spared it, and during a pandemic, no less. 

Accordingly,  Senate Republicans don’t seem too happy about their new prospect of ripping out Obamacare by the roots. As is usually the case when it comes to the popular parts of Obamacare, they’d rather pretend they’re not tearing it out at all.

Several GOP senators refused to comment to TPM about it. Others, including members of Senate leadership, suggested that it’s too soon to say whether the Affordable Care Act is really under threat.

A few Republicans seemed willing to acknowledge that they should maybe revisit the idea of replacing the ACA soon — an endeavor that collapsed spectacularly in the Senate in 2017.

“Respective of what the court decides, many of us — including myself — believe that Obamacare is not the best approach, so we should be moving on that front anyways,” Sen. Marco Rubio (R-FL) said. “But it’s been a difficult issue to move on because there have been strong differences of opinion even in the Republican Party about what that should look like. You remember we had that conversation 2-3 years ago, and it was not an easy lift.”

With astonishing speed, the path has cleared for President Trump to push through his yet-to-be-named replacement for the late Justice Ruth Bader Ginsburg, who died last week. If the nominee is confirmed before the election, as appears to be the plan, she could be on the court in time to hear a major anti-Obamacare case coming out of Texas, which is scheduled for arguments in November.

In the two previous challenges to the ACA before the Supreme Court, Chief Justice John Roberts voted in favor of saving the law, and was the deciding vote in the 2012 case. Ginsburg’s death and Trump’s move to quickly replace her shifts the balance of the court to 6-3, meaning a Roberts vote to uphold the law won’t, by itself, be enough to salvage it. 

Any judge that Trump picks to replace Ginsburg is expected to be against the law; his leading contender, U.S. Circuit Judge Amy Coney Barrett has publicly criticized the Roberts decision that initially saved it in 2012. The Trump appointees that have joined the court since the last Obamacare decision are also solidly to Roberts’ right, and are far from sure votes for upholding the ACA.

Some top Senate Republicans were not yet ready to engage with this reality. 

“I think it’s too early. … You’re assuming a lot of things,” Senate Majority Whip John Thune (R-SD) said. “We just want to manage the next few days and weeks, but I am sure there will be plenty of discussion about health care among other economic issues in the future.”

Asked if getting a justice on the court by the election increases pressure on Republicans to come up with an ACA replacement, Sen. John Cornyn (R-TX) said that, “I know that’s the talking points for the Democrats, but I don’t see those as directly related.”

Sen. Roy Blunt (R-MO), who like Cornyn and Thune, is also a member of GOP Senate leadership, leaned into the idea that it’s not yet certain that Trump’s nominee would be on the court on time to hear the case.

“Whether the court hears on the day they’re scheduled — and hard to imagine we’d have somebody on the court by the day they’re scheduled to hear the case — so I don’t know how that works out,” he said.

Adding to the irony of the current conundrum for Senate Republicans is Texas’ legal case against the ACA rests on a provision in the tax bill they passed in 2017 that zeroed out the individual mandate. The Trump Justice Department is supporting Texas in the case and has argued that the law should be fully dismantled. Under the Trump argument, both the law’s protections of pre-existing conditions and its Medicaid expansion, which has provided coverage to 12 million Americans, should be killed.

Before Ginsburg’s death, some Senate Republicans pointed to the likelihood that Roberts would uphold the law again as a reason they weren’t concerned about the GOP arguments in the case.

Now, they’re accusing Democrats of “fear-mongering,” as Sen. John Barrasso (R-WY) put it, around the issue as part of Dems’ broader Supreme Court messaging.

“I think what Biden and what my Democrat colleagues are trying to say over and over again is that everything you love about America will be lost if Biden doesn’t get to pick the next Supreme Court justice,” said Sen. James Lankford (R-OK). “I don’t think that’s true obviously — they’re trying to sell fear at this point.” 

Sen. Rick Scott (R-FL) said that “Democrats actually don’t want to fix health care, they want to use it as a campaign issue,” as he pointed to a bill that Democrats blocked. The bill, introduced by Sen. Thom Tillis (R-NC), who faces a tough reelection campaign, claims to protect coverage for pre-existing conditions. It doesn’t address the law’s Medicaid expansion, and it under-delivers on its central promise.

Barrasso also pointed to Tillis’ bill, as well as President Trump’s repeated promises to release an executive order addressing the replacement of the ACA.

“I think you’re aware the President has been working on that, will have an executive order coming out, has been planned long before the vacancy occurred on the Supreme Court,” Barrasso. The President and his aides have for several months been promising that that plan was just “two weeks” away. 

Some veterans of the 2017 Obamacare repeal disaster, like Sens. Todd Young (R-IN) and John Boozman (R-AR), said that in the event that the Supreme Court invalidates Obamacare, they’d hope for a bipartisan fix.

Sen. Mike Braun (R-IN), who wasn’t in the Senate for the 2017 fiasco, was more candid about the dilemma his party faces if their long-sought goal to tear down Obama’s signature legislation is achieved. 

“I’ve been on record for that — if we as a Republican Party do not come up with something other than ‘no’ on healthcare, we’ll be on the curb anyway,” he said.