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Texas Court Plays Hot Potato with Obamacare

By Katherine Hayes

Tuesday, December 18, 2018

Anyone who has ever played the game Hot Potato can imagine how policymakers on both sides of the aisle must have felt late Friday afternoon after Texas district court tossed them a decision holding the Affordable Care Act (ACA), commonly referred to as Obamacare, unconstitutional. President Trump characteristically tweeted that this was great news for America and urged “Mitch and Nancy,” referring to the Senate Majority Leader Mitch McConnell and soon-to-be House Speaker, Nancy Pelosi, to pass a “strong” new law that is “great” for everybody.

The Texas case was filed by 16 Republican state attorneys general to put a final nail in the coffin of the ACA. In 2012 the Supreme Court said the ACA was constitutional, holding that the individual mandate was a tax so the law was upheld. However, in an effort to fulfill campaign promises, the Republican-controlled Congress effectively eliminated the tax in the 2017 GOP tax bill. Once the tax was gone, the group argued, the basis for upholding the ACA was eliminated. Consumers, who are more concerned about healthcare costs than the law’s constitutionality, aren now left wondering what happens with their healthcare.

So, what happens next? Appeals will be filed on all sides; prevailing legal opinion seems to favor a reversal of the Texas District Court decision. However, experts have been surprised in the past over decisions relating to Obamacare. Although there was considerable debate on how the court would come down on the individual mandate, few saw the decision on the state Medicaid requirement coming.

Seeking to reassure the public that is supportive of ACA provisions protecting people with pre-existing conditions, the White House Press Office and the Department of Health and Human Services released a statement that coverage in 2019 would continue pending the appeals process.

In the coming months (maybe even years), the threat of the ACA being struck down will likely cause considerable angst within each party. On the GOP side, the conservative base will laud the demise of Obamacare. Moderate Republicans will worry about possible political consequences in 2020, based on the growing popularity of parts for the ACA.On the Democratic side, the decision may strengthen the hands of those seeking a new “Medicare-for-All,” approach to reform, exacerbating rifts within the Democratic party on whether to scrap the ACA or improve it.

While the Washington whirlwind of messaging and speculation over the court’s decision continues, the public has been very vocal that they pay too much for health care. In response, HHS Secretary Azar is working to bring down the costs of prescription drugs. On the Hill, Senate Health Education, Labor, and Pensions Committee chair and ranking members Lamar Alexander (R-TN) and Patty Murray (D-WA) are reportedly working on solutions to limit unanticipated charges for out-of-network care. And incoming Senate Finance Committee Chairman Chuck Grassley (R-IA) is working to bring down the cost of prescription drugs, as well. Both he and Ranking Finance Committee member Ron Wyden (D-OR) have reputations for bucking party leadership to find bipartisan solutions on healthcare. As we follow the game of Healthcare Hot Potato through the appeals process, and roll our eyes at the notion that Mitch and Nancy will reach agreement on “strong” legislation that will be “great” for all Americans, Congress must keep in mind that health care costs are a top priority with voters.