Let me just stipulate that Donald Trump nominating Amy Coney Barrett to the US Supreme Court and the Republicans in the Senate cramming the nomination through is a hypocritical travesty. I’ve been staunchly pro-choice since I was 10, and I’m sixty, so this is worrisome, to say the least.
However, I am not as worried about the ACA. Why? Well, I have to make another stipulation here. My scenario assumes we win the House, the Senate and the Presidency. That’s certainly not a lock, but it is looking at least somewhat likely. The second stipulation is that the Democrats in the Senate, with their newfound majority, finally get, after the SCOTUS nomination was rammed through, that the filibuster has to go.
Why would this potentially save the ACA? Well, SCOTUS is taking up the case because of a Court of Appeals ruling, which was based upon what most legal scholars tell us is a twisted interpretation of a provision of the law. The Court of Appeals overturned the entire law based upon that incorrect interpretation. Given the SCOTUS docket, a ruling on this case, which would be one of the major cases for the session, wouldn’t be handed down until the end, which is June of 2021.
So, the new Congress, with a Democratic majority, is sworn in at the beginning of January and the Senate gets rid of the filibuster. Joe Biden is inaugurated on January 20. One of the pieces of business Congress takes up is fixing problems that have been discovered over the years that the ACA has been in effect. One of those “problems” is the “ambiguity” in the provision that is being contested at SCOTUS. Congress changes the wording to make it crystal clear what they meant, passes the changes and Joe Biden happily signs them, with President Obama at the signing ceremony, just for good measure. The case is immediately made moot, and the ACA survives to see another day and millions of Americans keep their health insurance.
This is also a larger point than just the ACA. We have lived through over a decade of the Republicans holding power over the American people, even though they were in the minority then and are in an even smaller minority now. The practical effect of that legislative paralysis caused by the bad faith of the Republicans was to make any law or regulation that SCOTUS overturned or upheld the undisputed permanent law of the land because we didn’t have the power in the legislature (Congress) to change it. We don’t have to play by that rule book anymore. (We probably never did, but we didn’t see that then and we can’t go back in time, in any case.) If we can control the Congress and the White House, we can adapt legislation to deal with court challenges to our agenda. We could finally amend the Civil Rights Act to address the provision that SCOTUS overturned and get it working again. We can also take Executive Orders like DACA and make them law. Then we wouldn’t be at the whim of the next Republican president.
Honestly, it’s also how our democratic republic is supposed to work. When a large majority of the people want something (provided it’s not denying the rights of others), the legislative branch should be able to give it to them. Americans would finally see their national legislature doing something, which would help restore faith in at least some of our institutions.