Designed to Lose

Ten-minute drawing by Bonnie-Hop/DrawCeption, November 2016.

Piggybacking on Steve's post yesterday on the new Trump Justice Department policy on the Affordable Care Act—and the ongoing appeal process over the December ruling by federal judge Reed O'Connor of Fort Worth in a suit brought by 18 Republican state attorneys general announcing that the whole law, including mandatory coverage for pre-existing conditions, coverage of children up to age 26 on their parents' policies, regulations requiring insurers to give some kind of value for money, and health insurance for some 17 million people through the Marketplace and expanded Medicaid programs, is invalid—

That was OK with President Chucklehead, of course, who thinks consequences are for little people—

President Donald Trump was quick to take a victory lap, and pressed Senate Majority Leader Mitch McConnell, R-Ky., and the presumed incoming House Speaker Nancy Pelosi, D-Calif., to fix the problem. The president tweeted Friday night: "As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!"

—but the DOJ announced it would be defending part of the law, though not the pre-existing conditions part, presumably under the advice of lobbyists for insurers anxious to get around the Obama regulations against junk insurance that doesn't cover much of anything.

Now they've changed their minds and decided not to defend any of it at all, which seems like a pretty weird move from the political standpoint; healthcare is the most important issue on voters' minds, and they like what the ACA provides, though most of us really wish there was more of it. They showed it pretty clearly in the November elections, too, as seemed instantly clear the day after the elections:

Republicans lost their House majority in the 2018 midterm elections, and they can thank their own Obamacare repeal efforts.

Democrats campaigned hard against Republicans for backing legislation last year that would unwind the law’s protections for preexisting conditions, and health care came in as the No. 1 issue for voters, according to exit polls.

Opposing a popular part of the ACA is what lost them the House, and now they want to decuple down on the error?

Just about my first thought on the matter was that this must be upward management of the clown in the White House, raging around the office after he heard on TV that Obamacare still existed ("What? You told me we got rid of that shit!") and needing to be placated before he started making real trouble. And doing it because they were fairly confident there wouldn't be any consequences, under the assumption that the O'Connor ruling wouldn't survive Supreme Court scrutiny.

This was how Trump's advisers did the "national emergency" declaration during the Christmas holiday shutdown, as you might remember:

As a possible way out of the shutdown, Mr. Trump’s advisers in recent weeks have suggested that the president could declare a national emergency to fund the border wall and agree to sign a spending bill without such a provision. While the declaration likely would get tied up in litigation, Mr. Trump would be able to tell supporters he did everything he could to build the wall, one of his top campaign pledges in the 2016 presidential campaign.

They knew the thing was overwhelmingly unlikely to be found constitutional ("Congress won't appropriate money for my project!" is not an emergency but a normal functioning of the separation of powers), so it probably couldn't do much harm, and would solve the immediate problem of calming the "base", and Fox News, and perhaps most importantly the stable genius president himself, down.

The same could be true of O'Connor's decision, because it's a pretty terrible decision, which isn't really about the ACA at all, but about a provision in the Republicans' tax bill of December 2017, which "eliminated the individual mandate" (or more precisely reduced the tax penalty for not having health insurance to $0 per household); he argued that this congressional action instantly turned the ACA from a duly passed budget reconciliation bill into a different kind of bill that should have been passed under different Senate rules and had therefore become unconstitutional retroactively, though it had been entirely constitutional for its first eight years.

How bad is this decision? It's so bad that Professor Jonathan Adler, among the most remorseless and almost successful campaigners against the ACA from the start, called it "lawless" in a Times Op-Ed jointly written with ACA supporter Abbe Gluck:

the opinion by Judge Reed O’Connor is an exercise of raw judicial power, unmoored from the relevant doctrines concerning when judges may strike down a whole law because of a single alleged legal infirmity buried within.

If there's any merit to the argument at all, it should be used to overturn the tax law provision and restore the individual mandate instead—there's an idea, maybe an attorney general from some progressive state should file a suit for that.

How stupid is the Trump administration's decision? So stupid that the relevant cabinet officers, Alex Azar of HHS and Attorney General William Barr were both against it, according to new reporting from Politico (h/t Steve for pointing it out to me over at his place). Instead it was driven by the administration's Grand Poo-Bah and Trump whisperer, Lord High Everything Else Mick Mulvaney.

And Professor Adler:

"It’s weird. It just doesn’t make a lot of sense legally and it doesn’t make a lot of sense in terms of the way DOJ normally approaches these things. DOJ normally tries to make litigation go away and tries to defend federal statutes," said Jonathan Adler, a professor at Case Western Reserve University School of Law who has been a vocal opponent of the Affordable Care Act. "The substantive arguments in favor of that position aren’t very strong and you can’t find very many people who think the arguments in favor of that position are strong."

So I think that's really the answer: this move is designed to lose, and in the meantime get Trump and his Fox and his "base" off Mulvaney's back. Hopefully not alienating the voters too much in the meantime, which could be a bad miscalculation in its own right (that's what they thought about their position on pre-existing conditions last year and it didn't work very well for them). But it's clearer and clearer that keeping the orange-headed volcano from erupting is their chief objective nowadays.