Note: This is the blog post I wished I had written yesterday.
Imagine, for a moment, you’re a Republican. You already know that your party has hitched its wagon to the biggest ass in the history of American politics, and that he has proceeded to bungle a response to the worst public health crisis in a century, touching off a deep recession in the bargain. This is at the same time that he (and you, because you are a Republican, and this next thing is what you’ve been doing for 40 years) has placed himself on the wrong side of the biggest and most vigorous civil-rights uprising since the mid-1960s, a roiling combination of the March on Washington and the burning of Watts.
Perhaps you’re thinking to yourself this morning, y’know, maybe this isn’t the best historical moment to take healthcare away from tens of millions of Americans.
From NBC News:
The late-night brief, filed Thursday in the middle of the coronavirus pandemic, carries major implications for the presidential election. If the justices agree, it would cost an estimated 20 million Americans their insurance coverage and nullify protections for pre-existing conditions. The Trump administration’s brief comes as the U.S. has recorded more than 120,000 deaths from COVID-19, with nearly 2.5 million confirmed cases. On Wednesday, the nation hit a new record for the highest daily total of new infections reported with more than 45,500.
For the roughly 25 million people out of work and collecting jobless benefits, the ACA’s marketplaces and Medicaid expansion provide avenues to gain subsidized health insurance with consumer protections. In the brief, U.S. Solicitor General Noel Francisco and other Justice Department officials sided with Texas in a case led by Republican attorneys general, arguing that the requirement for people to buy insurance is no longer valid after Congress scrapped the penalty for non-compliance in 2017. The Justice Department added: “The individual mandate is not severable from the rest of the Act.”
We should also note that the administration has no replacement plan, and no intention of cobbling anything that possibly could pass before Election Day, and that the president doesn’t give a damn one way or the other how many people die. They could drop dead on the White House lawn and he’d step over them to get to the helicopter so he could cheat at golf for the afternoon. This is also true of the national leadership of the president*’s party.
(You may recall that the mandate disappeared into the maw of the giant tax cut with which the administration* shoved even more of the country’s wealth upwards. This is a marriage of greed and inhumanity unlike any we’ve seen since the Dawes Act landed on our Native populations.)
But the payoff of this vicious cosmic prank, dropped in the middle of the night on Thursday, comes on Page 37 of the Department of Justice’s brief. This one passage is the death warrant for millions of Americans.
Even though the guaranteed-issue and community-rating provisions are constitutionally valid when standing on their own, it is evident that Congress would not “have wanted” them to stand without the individual mandate. See NFIB, 567 U.S. at 587 (opinion of Roberts, C.J.).
That these provisions are inseverable is evident from the enacted text of the ACA, where Congress expressly found that the individual mandate is essential to the operation of the guaranteed-issue and community- rating provisions… “[I]f there were no requirement” to purchase insurance, Congress concluded, “many individuals would wait to purchase health insurance until they needed care.” 42 U.S.C. 18091(2)(I). But “[b]y significantly increasing health insurance coverage,” the mandate, “together with the other provisions of this Act, will minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums.” Ibid.
For that reason, Congress concluded, the individual mandate is “essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.” Ibid. (emphasis added); see 42 U.S.C. 18091(2)(J) (“The requirement is essential to creating effective health insurance markets that do not require under- writing and eliminate its associated administrative costs.”).
This is the administration saying that, hey, we killed the individual mandate so our friends could get fatter, and the individual mandate was essential to the operation of the Act. So sorry, campers, you no longer are protected from losing your insurance due to pre-existing conditions—like, say, the lingering effects of the virus that has caused the pandemic that the president* has so studiously ignored. Anything any Republican says to the contrary hereafter is a lie, unless they come out firmly against this lawsuit.
And, even then, every damn one of them should bear the burden and pay the price for ripping healthcare away from millions of Americans in the middle of a pandemic just because the twisted child in the White House got mocked at a banquet several years ago. They own every death. How do you sleep, Noel Francisco? While you make your argument, can you hear the sound of a million ragged breaths from people dying at home because their lungs are turning to cement? And so, here you are, Noel, and here the rest of them are, too, setting up shop at the crossroads where suicidal politics collides with homicidal neglect.
Timing, after all, is everything.