ACA Survives No Thanks To Neil Gorsuch, Cory Gardner

Politico reporting on the big decision from the U.S. Supreme Court this morning rejecting the lawsuit brought by a number of states’ attorneys general seeking to strike down the landmark 2010 Affordable Care Act by a fairly resounding 7-2 majority decision:

The 7-2 decision, which preserves health insurance for millions and the law’s popular protections for preexisting conditions, may serve as the final chapter in the decade-long legal assault on Obamacare, arriving as President Joe Biden seeks to build on the law’s coverage provisions. It’s also the final blow to former President Donald Trump’s pledge to rip up his predecessor’s signature health care law, after his administration had supported the red states who brought the lawsuit…

The red states challenging the law, led by Texas, argued that Obamacare’s so-called individual mandate became unconstitutional after Congress zeroed out the law’s penalty for not having health insurance in a 2017 tax cut package. They said the entire law should fall because the mandate to purchase insurance, which remains on the books, was central to the law’s functioning.

However, the states failed to show how they were hurt by a mandate that had been rendered ineffective, the Supreme Court said.

The battle over the lawsuit dragged on for over three years, after many legal experts and politicians had originally dismissed it as a longshot. But it gained traction with Republican-appointed judges in lower courts and played a major part in shaping Trump’s presidency. Democrats attacked Trump and Republicans down the ballot for threatening health insurance to over 20 million people and popular insurance protections, putting Trump on the defensive over his failure to produce a long-promised health care plan.

The dissenting opinion, signed by Colorado’s own Justice Neil Gorsuch along with Justice Samuel Alito, reads more like a political press release than a judicial dissent:

“No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats. A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. So a tax that does not tax is allowed to stand and support one of the biggest Government programs in our Nation’s history. Fans of judicial inventiveness will applaud once again. But I must respectfully dissent,” the dissent said.

Everyone is still trying to make sense of the sweeping changes on the U.S. Supreme Court during Donald Trump’s presidency, in which Republican treachery against Barack Obama following the death of one Justice combined with the untimely death of another to cement what’s broadly believed to be a 6-3 conservative majority. But as Chief Justice John Roberts has taught us several times in his 15 year term, neither side always gets what they expect from Justices once they’re liberated from the political tensions at the time of their confirmation. We’ve said as much about Gorsuch himself, but yesterday’s weak and politicized dissent is both a disappointment and an embarrassment to Coloradans who boosted Gorsuch’s nomination.

Then-Rep. Cory Gardner complains about pro-ACA advertising in Congress in 2013.

As for the Affordable Care Act, “Obamacare,” or whatever you want to call it, it’s the law of the land. After years of fact-free demonization of the ACA failed to slow its steady gain in popularity as more Americans experienced its benefits firsthand, Republicans had a wide-open shot at replacing the ACA with Trump’s fabled better deal–and their failure to accomplish this long-promised objective severely damaged the GOP’s credibility ahead of the 2018 midterms in which Democrats retook control of the U.S. House. Ex-Sen. Cory Gardner, whose career in federal office was as much as anyone in Congress built on assailing the ACA with misinformation, promised to take action to protect patients with pre-existing conditions had this case been successful, but after Republicans tried and failed to keep their promises on health care when they had total control in Washington there was simply no reason to believe him.

Asked if he supported the lawsuit, Gardner replied: “That’s the court’s decision. If the Democrats want to stand for an unconstitutional law, I guess that’s their choice.”

At this point, Republicans–at least Gardner personally–have lost far more in their decade of total war on what amounts to the right-wing Heritage Foundation’s proposal for market-based health care reform than they ever gained in short-term political support. Slamming the door on even the ACA’s modest reforms as the problem of health care affordability worsens has put Republicans hopelessly on the wrong side of a problem that millions of Americans need solutions for, not more empty rhetoric. A realistic discussion of the country’s next necessary steps on health care can only begin once we admit that the reforms enacted ten years ago did not result in the catastrophe half the country has been taught to believe took place.

We’re here for that discussion any time you are.

7 Community Comments, Facebook Comments

  1. MichaelBowman says:

    A (now) party of grifters utterly devoid of ideas or solutions.  

    A friend of mine reported Gardner was glad-handing in a local Yuma diner this week, looking like a politician.  If the map works out, maybe Ken can jump into the new '8' and Gardner can return to move his Repeal and Replace! count into the 70's?

    • NOV GOP meltdown says:

      If there was ever a point for the R's to take the loss and move on with Obamacare, it is now was 5 years ago. But Don Quixote must continue on his courageous quest…

      And repeal and replace seems so strikingly similar to trickle down I can't stand it.  Just give us R's what we want A) repeal Obamacare/tax cuts, and then  you'll get B) a replacement that is much better/money magically flowing from the rich to the poor. 

      The problem is, as we all know, B never happens.

  2. bullshit! says:

    Neil Gorsuch and moving the BLM to Grand Junction. Two bad ideas locals should be smarter about.

  3. Early Worm says:

    The majority opinion is short, as is the Thomas concurrence. I have not carefully read the whole thing. But a few things stick out. 

    Thomas writes separately to point out that the court was wrong twice before in upholding the ACA, but it is right now – the states have suffered no harm and have no standing. It's a little whiny, but not out of place. The dissent, by Alito joined by Gorsuch, reads like a judicial temper tantrum, like a 5-year old that screams, "It's just not fair." They regurgitate all of the reasons they really do not like this law and cite dissents from other cases (otherwise known as losing arguments).  They willfully ignore the fact that the states have suffered no injury as a result of the individual mandate and ignore the legislative intent but have the gall to accuse the majority of judicial inventiveness. 

  4. Highlands Ranch says:

    The attack on Gorsuch is really unfair.  He is a textualist.  He does not look for  “original intent” like Scalia made famous or “natural law” like Barrett and Thomas.  He reads statutes for their plain meaning.  If people say: “That is not what they meant!”  His reply as a textualist is: “Well then the legislature can change it to clearly say what they mean.”  That has practical difficulties.  But that has led to two rulings led by Gorsuch that left wingers applauded.  Recognizing that a substantial portion of Oklahoma is still considered Indian land because the states, not the federal government, took their land. (Under American Indian law, the federal government can break a treaty just like it can with any other nation, but a state cannot and statutes of limitations do not run against a sovereign.  So since the Feds never abrogated the treaty with the Oklahoma Indian tribes, the land was legally still their own subject to federal jurisdiction).  And finding that the civil rights statute applies to homosexuals since “sex” means conduct and not just gender.  

    So at least with Gorsuch people should be able to understand where he is coming from and make arguments fashioned for him as he is consistent with his judicial reasoning and why he gets to the results that he does.  With the ACA, Roberts originally saved it by reading “penalty” as simply a “tax” as there are constitutional problems with imposing penalties on not doing something.  For Gorsuch, however, it says “penalty” and he is not going to read it any other way.



    • Cogito says:

      You have a point about Gorsuch's philosophy.  And I think there are good points in the dissent about previous precedent which found there was standing in arguably analogous situations.  However, the Alito/Gorsuch dissent didn't stop with disagreeing about standing but felt it necessary to rehash the constitutionality question by relying very heavily on the dissents in the 2012 case in an effort to get around the precedent of that case.    Gorsuch himself wrote in his memorial to Scalia "… the founders understood the judicial power as a very different kind of power.  One that employs not utility calculi but analogies to past precedents to resolve current disputes."  So his commitment to textualism may give way to his commitment to politics.

    • spaceman2021 says:

      Gorsuch is a mixed bag.  He's an originalist when it comes to constitutional interpretation–which is the ridiculous, but popular practice of judges playing bad amateur historians–and, like Scalia, his analysis produces mixed results viewed on the left-right spectrum.  But he diverges from Scalia on some things.  Agency deference (Chevron deference), and his concurring opinion in this week's  religious case called into question the validity of Employment Division v. Smith, which Scalia wrote and permits laws of general application to be applied equally without running afoul of the Free Exercise Clause.  Gorsuch's concurrence this week suggests that Smith's days are numbered and the Court will continue its unfortunate march to elevating religious "rights" above other rights.  In other words, onward Christian soldiers and the rest of you suffer.  Gorsuch is no friend  to a secular society or to the principles of stare decisis.  

      As for statutory issues, yes, he is a textualist, but like all textualists, result-oriented analysis will enter into certain decisions.  Scalia was no different in that regard.  

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