UPDATED: How should Speaker Pelosi play a suddenly weaker #TexasFoldEm hand?


The Texas Fold'em lawsuit to strike down the ACA (officially called "Texas vs. U.S.", "Texas vs. Azar" or, more recently, "CA vs. TX") is scheduled for oral arguments before the U.S. Supreme Court on November 10th, 2020...exactly one week after Election Day.

A few hours after Supreme Court Justice Ruth Bader Ginsburg passed away Friday evening, I posted an entry which opened with the following sentence:

I'm assuming that the death of Supreme Court Justice Ruth Bader GInsburg doesn't change the date of the hearing; presumably it will be heard by the 8 other SCOTUS justices or (God help us) by all 9 if Mitch McConnell is able to ram through Trump's appointee in record time (November 10th is just 53 days away).

As of this morning, with both Colorado GOP Senator Cory Gardner and Utah GOP Senator Mitt Romney issuing statements that they will indeed vote for whatever ultra-right wing hack Donald Trump appoints, and that they're likely going to ram his appointee through before the election (just 42 days away now), it's looking very likely to be a full 9-judge court which hears and decides on the Texas Fold'em case to strike down the Patient Protection & Affordable Care Act...but with a 6-3 ideological lean.

In my Friday night post, I noted that, as law professor Nicholas Bagley noted awhile ago, there are three ways Democrats could attempt to negate the SCOTUS decision before they issue their ruling:

  • 1. Pass a simple bill changing the federal mandate penalty to an amount higher than $0.00.
  • 2. Pass a simple bill clarifying that the mandate is separate from the rest of the ACA.
  • 3. Pass a simple bill striking out the underlying mandate language itself.

Any of these bills passing both the House and the Senate and being signed into law (or overriding a veto) would instantly render the entire case moot, thus saving the ACA.

The problem with the above statement, of course, are the "...and the Senate" and "...signed into law" parts. As long as Mitch McConnell controls the Senate, it's a virtual certainty that such a bill would never even get a vote there, much less pass (and even if it somehow did, it would certainly be vetoed by Donald Trump if he's still in office at the time).

Nevertheless, Bagley, along with some other healthcare wonks, thinks House Dems should go ahead and do this right now, before the election, in order to pressure the Senate GOP on the issue (after all, voting for it would let Cory Gardner, Martha McSally, etc. argue that they "saved coverage of pre-existing conditions" even though the only reason it was in jeporardy is because they voted to zero out the penalty in the first place, thus creating an opening for this stupid lawsuit).

His rationale is as follows:

At least some Republicans, then, might be interested in gaining a symbolic victory and avoiding a self-inflicted wound. Why not give it a shot? The House should pass a one-sentence bill adopting one of these three fixes. Send it to the Senate. See what happens next. If the Senate goes along, it’ll be a moment of bipartisanship and responsible congressional behavior. And if the Senate refuses, the Democrats can pummel the Republicans for supporting an irresponsible lawsuit.

Of course, that was nearly two years ago; we're now just 6 weeks out from Election Day. Passing such a bill through the House would put immediate pressure on the GOP Senators to pass it as well. McConnell refusing to bring it to the floor wouldn't prevent Republican Senators from being slammed with everything Dems have on the issue.

So why won't Speaker Pelosi and House Dems "give it a shot"? After all, even if it fails this year, they could still pass it again early next year (assuming they still hold the House; if they don't, all is lost anyway).

The reason for such a delay is that I've been told by several other Constitutional experts that if the House passes such a "fix" bill without it also passing the Senate and being signed into law, it would effectively amount to "admitting" that there's a legitimate "problem" which needs fixing, thus making it even more likely that the SCOTUS would rule in the plaintiff's favor.

In other words, if you come at the king, you best not miss. The idea is that passing a bill through the House would in & of itself cause SCOTUS to lend more credence to the plaintiff's case, thus effectively shooting themselves in the foot.

Until now, I've accepted this as a reasonable argument, even though Bagley and some others think it's nonsense. Again, while SCOTUS will hear the case on November 10th, they supposedly won't issue their final decision until sometime next spring or even summer. This gives Dems plenty of time to take action before that happens...and again, if they hold majorities in the House and Senate as well las the White House at that point, they can defuse the Texas Fold'em bomb easily enough.

There are two problems with this thinking, however:

First, the death of Justice Ginsburg and the GOP's near lock-step frenzy to replace her with an ultra-right wing ideologue has made it much more likely that SCOTUS will rule for the plaintiffs anyway. In other words, the argument that "passing the bill through only the House would damage the defense" has just been rendered a lot weaker than it was a few days ago.

Secondly, there's always the possibility--extremely slim though it might be--that the newly-Trumpified SCOTUS would issue their ruling before January 20th, when the next President is inaugurated. If that happens, and if the ruling is to strike down the ACA, then Dems would have missed a shot (a long shot, but a shot nonetheless) at salvaging the law.

I asked Bagley about this possibility, and he was pretty dismissive of it, saying that the opinion is very unlikely to come out before January 20th; apparently it's unheard of for such a high-profile case to be decided that quickly.

Of course, a lot of things which were previously "unheard of" have happened over the past four years. The normal protocols and timeframes haven't applied on a great many things in the Trump era, so I don't see why this would be any different.

Over at The American Prospect, healthcare wonk Jon Walker agrees with Bagley:

Conceivably, the entire Affordable Care Act could go away before the end of the year, and even if that were appealed, a 6-3 split on the Supreme Court could solidify that ruling.

The only silver lining is that the entire lawsuit is based on an absurd technicality, and House Speaker Nancy Pelosi (D-CA) can use leverage to quickly take action to save the health care law. As the article below, written last year, demonstrates, if House Democrats attach a full repeal of the individual mandate (which technically still exists but with a penalty of zero dollars) to a must-pass bill, that should be sufficient to kill the case. As Pelosi acknowledged on This Week With George Stephanopoulos on Sunday, “Congress has the ability to overturn the injustices that spring from the Supreme Court.”

But the House only has a one-week window to try in this case. Just yesterday, Pelosi released a must-pass continuing resolution to prevent a government shutdown on October 1. She could add the individual-mandate repeal as a condition of passing the continuing resolution, preserving the rest of the law. We have enough data now to know that the mandate is not essential to the ACA’s functioning; all it does is give conservative fever dreams of overturning the law in court a flicker of hope. House Democrats have literally one last chance to save the ACA, or at least force all Senate Republicans up for re-election to shut down the government to save the hated individual mandate, in a cynical ploy to take away health care from millions.

There's also another possibilty as well, however, noted by Timothy Jost at the Commonwealth Fund:

If a majority of the justices vote to affirm the Fifth Circuit decision, or if an eight-member court splits evenly, the mandate would be held unconstitutional and the case would be sent back to District Court to consider if other ACA provisions should be invalidated. Any decision of the District Court could be appealed back to the Fifth Circuit and ultimately possibly heard again by the Supreme Court, leading to more litigation.

We'll call this the "Limbo Scenario"...the ACA survives yet another assassination attempt and lives to fight another day, potentially dragging this insanity out by another couple of years yet.

...Alternatively, the Court could decide at least 5–3 (or 5–4 or 6–3 if a new justice is appointed in time) that the mandate is unconstitutional and the rest of the ACA is “inseverable” from it and must also be invalidated. This would destroy the ACA and throw our health care system into chaos.

This is the Nightmare Scenario.

It is also possible that the Court could uphold the ACA generally, but strike down some of its specific provisions that are more closely related to the mandate and were specifically challenged by the plaintiffs. These could include the guaranteed issue and community rating provisions and preexisting condition exclusion ban.

This could be any number of "Half a Loaf" scenarios--Medicaid expansion and closure of the Medicare Part D donut hole (neither of which have a damned thing to do with the mandate penalty) being saved, for instance. One surreal possibility would be the ACA's individual market financial subsidies remaining in place...but without any standard "benchmark Silver plan" on which to base the unsubsidized premium prices. That would be a logistical and actuarial nightmare, because the "benchmark plan" subsidy would have to be calculated separately for each individual enrollee, and then the subsidies would be calculated based on that.

Not only would this mean bringing back medical underwriting with a vengence, it would take it to the next level. A cancer patient earning $25,000/year might see their official premium be set at over $12,000/month, but would receive $11,864/month in APTC subsidies, while if they earn a bit over $50,000/year they'd be charged nearly 3x their gross annual income, which would make it a wee bit difficult to balance their budget each month.

...There is a decent chance that at least two Republican appointees will join the three Democratic appointees in finding all of the ACA severable from the mandate, thus upholding the ACA. In two opinions this past spring, one written by Chief Justice Roberts and the other by Justice Kavanaugh, the Court found specific provisions of other statutes to be unconstitutional but severed them entirely from the rest of the statutes, which remained valid.

This is the "Mountain out of Molehill" Scenario: What if, after all this fuss & bother, two GOP appointees--one of whom was appointed by Trump himself--actually defy everyone's expectations and save the ACA? (They could also rule flat-out against the plaintiffs, which would amount to the same thing in practice). If this happens, then there'd be no point in Pelosi taking any action at all. I haven't a clue how likely this is; it seems far-fetched to me, especially given how hyper-partisan everything has gotten, but anything's possible.

Finally, Jost brings everything right back to the course of action which I've been recommending untl now: Wait until a hopeful Democratic trifecta is locked in as of January 20th, 2021, and then go ahead and pass one of the 3 bills above:

...A Supreme Court decision in California v. Texas is not expected until spring or perhaps early summer. In the meantime, Congress could act to moot the case and preserve the ACA by reimposing a nominal tax or repealing the mandate or the findings on which Texas bases its claim to severability. This seems most likely if Vice President Biden is elected president along with a Democratic Senate and might require ending the Senate filibuster.

There may not be 14,000,605 possible outcomes to this nightmare, but there's several, and choosing the right course of action to make sure half the population doesn't turn to dust isn't easy.

UPDATE: Welp, I guess it's not gonna happen before Election Day, anyway:

Anyway, the House just passed a CR without restoring any amount (i.e. $1.00) of the individual mandate tax

— Matthew Cortland, Esq (@mattbc) September 23, 2020

However, apparently the Continuing Resolution just passed only runs through December 11th.

There are two other opportunities for Speaker Pelosi and the House Democrats to pass the bill: During the Lame Duck session (after Election Day, before Inauguration Day)...or after Inauguration Day, which is when I was originally hoping they'd do so (again, assuming a Democratic trifecta, that is).

Stay tuned...