President Donald Trump's chance of occupying Justice Ruth Bader Ginsburg's seat could shape the case law of the Supreme Court for years to come, but a newly appointed judge could provide healthcare to 20 million Americans – and how much they pay for it – a lot affect earlier.
A week after Election Day, the Supreme Court is due to hear arguments on November 10th over whether the Affordable Care Act (ACA), also known as Obamacare, is null and void.
The Trump administration and 18 Republican states argue that all of the law has to go. After federal lawmakers zeroed the individual mandate penalty for lack of health insurance in 2017, the entire affordable care law must fall with it, they claim.
There is no reason why the entire law must collapse and deprive an estimated 20 million people of health insurance, say more than 20 democratically oriented states and the democratically controlled House of Representatives.
Even before Ginsburg's death at the age of 87, these were tricky questions. Now the question is whether there will be a ninth, potentially groundbreaking, judge – and what kind of decision that means at a moment when millions of people have lost their health insurance as the economy fluctuates under the coronavirus pandemic.
In 2012, Ginsburg was part of the 5-4 majority that decided that the individual mandate stood up to judicial scrutiny because it was a tax. In 2015, she was part of the 6-3 majority for a decision related to tax credits and the ACA.
Judge Amy Coney Barrett, now on the Seventh Court of Appeals, has reportedly turned out to be Trump's first choice to replace Ginsburg. The president wants to fill the position "immediately" and said Monday he plans to announce his election later this week.
The court's ruling could determine access to health insurance for millions during a pandemic
The Supreme Court's ruling on Affordable Care Act would have pretty immediate ramifications for many Americans who have lost their employer-sponsored insurance due to layoffs due to the coronavirus pandemic.
It is estimated that more than 6 million workers have lost access to worker-provided health insurance since the pandemic started.
In a recent report by the Economic Policy Institute, a nonprofit, non-partisan think tank, it was estimated that around 6.2 million workers have lost access to health insurance policies they received through their employers because they were laid off since the coronavirus pandemic broke out were. This figure takes into account workers who were originally laid off but have since found new employment.
In many cases, these workers' health plans included their spouses, partners and loved ones. In total, the rise in unemployment has cost around 12 million people their health insurance coverage.
With the expansion of health insurance options created by the Affordable Care Act, most of these workers are eligible for government subsidized health insurance.
"Some people will be out of the reach of the ACA, especially in January 2021 when benefits (unemployment insurance) for many cease and some adults fall into the Medicaid coverage gap due to government decisions not to extend coverage under the ACA. "
A separate study by the Kaiser Family Foundation found that nearly half of people who were no longer insured after losing their job were eligible for Medicaid. And about a quarter of those who have lost their employer-sponsored plans could qualify for subsidized insurance purchased through Obamacare's established insurance markets.
"Some people will be out of the ACA's reach, especially in January 2021, when (unemployment) benefits for many cease and some adults fall into the Medicaid coverage gap due to government decisions not to extend coverage under the ACA "wrote the researchers.
In total, millions of Americans had health insurance coverage made possible by Obamacare before the coronavirus pandemic began. According to the Centers for Medicare and Medicaid Services, around 11.4 million people across the country have signed up for health insurance through insurance exchanges.
As of January 2020, 70.7 million people were enrolled in Medicaid or the Children's Health Insurance Program (CHIP), up from 14.2 million in 2013.
Another factor in Obamacare's expanded coverage that is also of great concern to many Americans in the COVID era: the obligation on insurers to cover those with pre-existing conditions.
Before Obamacare's transition, health insurers could refuse coverage, limit payouts, or charge higher premiums to people with pre-existing medical conditions. If the Supreme Court were to repeal the Affordable Care Act, these safeguards would likely go away. Republicans said they would ensure coverage for those with pre-existing conditions, but have not made specific policy proposals to that effect.
So far it has been confirmed that around 6.82 million Americans are infected with the virus that causes COVID-19. To date, 2.59 million of these people have recovered. But all could be denied health insurance if Obamacare is put down.
This is because COVID-19 can be viewed as a pre-existing condition, especially in those with persistent symptoms.
In this case, if the pandemic is not resolved before the Supreme Court ruling, returning pre-existing terms in return could make it harder for health insurers to access insurance. This, in turn, could complicate efforts by health officials to fight the pandemic if many Americans forego testing or treatment for fear of high medical costs.
Can the Supreme Court suspend the Obamacare case for the time being?
Yes, but it's an unusual move, according to Andrew Koppelman, professor of constitutional law at Northwestern University's Pritzker School of Law. At least five judges would have to decide to postpone the case to the next term, which Koppelman said would begin in October 2021.
Traditionally, if a judge is not confirmed prior to oral disputes in a particular case, he or she has no voice on the matter, a Supreme Court expert said.
If it doesn't, Trump and the Senate Republicans have a very tight timeframe to put a ninth judge on the bench to hear the case. If a Supreme Court judge is not validated prior to oral arguments in a particular case, he or she traditionally has no voice on the matter, Koppelman said.
However, when a judge like the reported front runner Barrett is confirmed prior to oral arguments, there is no relief to the job. "If Judge Barrett is confirmed on November 9, Judge Barrett is expected to spend the evening reading the pleadings so she can ask questions the next day," said Koppelman, author of The Tough Luck Constitution and the Assault on Health Care "reform."
A 4: 4 tie means that the lower court's decision is upheld but not primarily binding. This is a 2-1 vote by the Fifth Instance Court of Appeal that found the individual mandate unconstitutional and sent a district judge back to take a closer look at the rest of the Affordable Care Act must coincide with it.
How would a new Trump appointee affect the case decision?
"If a new judiciary is set up before the election, it is likely that the mandate will be crushed and the ACA may be dismantled."
The judge could likely build a majority in the Supreme Court that would remove part or all of the Affordable Care Act, some observers say.
"If a new judiciary is set up before the election, it is likely that the mandate will be crushed and the ACA may be dismantled," said a statement by Thomas McLoughlin and Eric Potoker of UBS Global Wealth Management on Monday.
But Ryan Owens, professor of political science and director of the Tommy G. Thompson Center for Public Leadership at the University of Wisconsin-Madison, isn't so sure.
"Most observers, right or wrong, don't give this case much of a chance … you are playing the long game. You want someone in court who has a consistent philosophy and with whom you agree."
"Most observers, right or wrong, don't give this case much of a chance," said Owens. So it is unclear how much effort the Trump administration goes to to get a victory in one case. "You play the long game. You want someone in court who has a consistent philosophy and whom you agree with."
Assuming the oral presentation is still going according to plan, there are a number of congressional actions that can take place between now and a decision in late spring or early summer, wrote Timothy Jost, professor emeritus at Washington and Lee University School of Law , for The Commonwealth Fund. a private foundation that promotes better access to health care.
For one, the legislature could turn the lawsuit into a contentious issue by imposing a tiny tax on each mandate. "However, the ACA is currently more at risk than it was a few days ago," he said.