The opening briefs for California v. Texas, the Affordable Care Act repeal lawsuit before the Supreme Court, begin Wednesday and an interesting wrinkle on the White House side of things has popped up. The Trump administration has advanced the challenge and in fact broadened the argument to say that the entirety of the law, not just some provisions of it, should be thrown out. But now it seems Attorney General William Barr is having second thoughts.
CNN reports that Barr made a "last-minute push" on Monday with White House officials including Vice President Mike Pence and White House counsel Pat Cipollone to persuade them that maybe they shouldn't argue for the entire law being tossed, and to preserve parts of the law. No decision was made in that meeting. Barr's thinking, CNN says, is political. "Barr and other top advisers have argued against the hard-line position for some time, warning it could have major political implications if the comprehensive health care law appears in jeopardy as voters head to the polls in November." Given we're in the middle of a pandemic that shows no signs of abating in the near future, Barr is probably right.
That would be a great out for Chief Justice John Roberts, who is likely not going to be too thrilled with being put in the position of blatantly taking health coverage away from tens of millions of Americans. As we've seen before with this law (when he voted to uphold it in 2012 but split the proverbial baby by saying national Medicaid expansion could be sacrificed), he likes to have a middle ground. No matter that if the administration retreated to its original position, millions and millions of people would be at risk of losing their coverage—including all of the people recovering from COVID-19.
As a reminder, the Trump Justice Department's previous position was that protections for people with preexisting conditions and the other highly popular insurance reforms must be abolished. It was as legally specious a position as arguing for the entire law to be invalidated because Congress had zeroed out the individual mandate fine. That would be a bad enough thing for the Supreme Court to agree to now that there are all these people who could be denied coverage for any number of illnesses as a result of having contracted COVID-19. Every day we find out some new body part or system that this beast of a disease damages, so the exclusions of coverage would be broad—if they're allowed again under the law. That's what the administration would still be arguing for, even if Barr prevails and gets them to back away from calling for a total repeal.
The opening briefs are due in the court this week, on May 6, with following briefs due through the summer until the Court hears this case in its fall term, which begins on Oct. 5.
