July 10, 2019 10:51 AM UTC

Gardner's Silence Roars During Latest Obamacare Threat

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• by: Colorado Pols

Westword’s Chase Woodruff reports:

As yet another Republican legal challenge to the Affordable Care Act makes its way through the courts, Colorado Democrats are sounding the alarm over its potentially devastating impact on the state’s health care system — and blasting Senator Cory Gardner for his continued silence on the lawsuit.

“This would do irrevocable harm to consumers,” said Adam Fox, director of strategic engagement for the Colorado Consumer Health Initiative, on Tuesday, July 9. “It would leave millions without insurance options, it would throw our health care system into chaos, and it would threaten our state’s fiscal stability.”

Fox and other health policy experts spoke to reporters as the Fifth Circuit Court of Appeals in New Orleans heard oral arguments in Texas v. Azar, the latest in a long line of Republican attempts to overturn the ACA, also known as Obamacare, through Congress and the courts…

This latest of so many lawsuits against the Affordable Care Act comes in response to legislation passed by the Republican Congress in 2017 zeroing out the tax penalty that enforces the law’s mandate that every American obtain health coverage. Although Republicans failed over repeated attempts to “repeal and replace” the Affordable Care Act, they did manage to strike this individual blow against the law–and in doing so, paved the way for the controversial argument subsequently mounted by Republican attorneys general that the ACA can’t function at all without the mandate.

“This case is really dangerous,” said Fox. “It essentially argues that the entirety of the ACA should be ruled unconstitutional because Congress repealed one small component of an expansive and transformative law.”

One of the bigger problems with this case is it seeks to define the “intent of Congress” based on their vote to zero out the mandate as an intent to repeal the Affordable Care Act as a whole, which doesn’t make sense. If the political will had existed to repeal the law entirely, Congress could have done that. In the New York Times story recapping yesterday’s hearing, there seems to be a cynical acknowledgement of this on the part of one of the GOP-appointed judges:

Judge Engelhardt asked Mr. Letter, the House lawyer, why Congress could not remedy the situation by writing a new health law or set of laws.

“They could do this tomorrow,” Judge Engelhardt said, leading Mr. Letter to dryly point out that Mr. Trump would need to sign off on new laws, too. [Pols emphasis]

“And obviously the president would sign this, right?” he asked sardonically. “No, obviously not.”

“You can fix this, and the Supreme Court has told you how to do it,” Mr. Letter told the panel, referring to legal precedent that directs courts to limit damage to major statutes when considering which provisions to throw out. “Maintain everything you can that can stand on its own.”

For Sen. Cory Gardner, this legal battle entails more than the usual risk–especially if the case comes before the U.S. Supreme Court before the 2020 elections. After all, the promise to not just get rid of the Affordable Care Act, which millions of Americans depend on for their coverage, but to replace the ACA with a system that would insure Americans and continue to protect patients with pre-existing conditions is a promise that Gardner has personally broken. In 2015, Gardner promised that in the event of a successful court challenge to the law that Republicans in Congress would have a replacement ready to go, a promise we now know was totally without merit.

It’s not an exaggeration to suggest that Gardner’s year-long campaign against the Affordable Care Act, falsely claiming the law had resulted in hundreds of thousands of Coloradans losing coverage and telling a story of personal higher health costs under the ACA that reality-based numbers were never able to support, has left him one of the most vulnerable Republicans in the nation on the issue. In the event of chaos resulting from a successful GOP court challenge that makes no provision for his own stated goals like protecting people with pre-existing conditions, Gardner would be left holding the bag politically at the worst possible moment in his career.

As of this writing, the odds are pretty good that this will be the outcome.