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Trump was wrong about the law, Obamacare politics and his judges

Analysis: The former president promised that his Supreme Court picks would overturn the Affordable Care Act. He met the court's ruling with the deafening silence of defeat.
In the end, Trump was wrong about the law, the politics of trying to kill the Affordable Care Act and the assumption that he could control the votes of his Supreme Court picks.Mandel Ngan / AFP via Getty Images file

WASHINGTON — Former President Donald Trump promised to repeal Obamacare, the health insurance program that helped fuel the backlash tea party movement and ultimately his own candidacy.

If Trump couldn't get Congress to do away with the law — and he couldn't, even with Republicans in control of both chambers — he vowed to choose Supreme Court justices who would declare Obamacare unconstitutional.

"If I win the presidency, my judicial appointments will do the right thing, unlike Bush's appointee John Roberts on Obamacare," Trump tweeted in 2015, referring to the decision Roberts wrote that preserved the law's mandate for Americans to buy health insurance.

But two of the three jurists Trump picked for the court — Brett Kavanaugh and Amy Coney Barrett — voted with Roberts as part of a 7-2 majority Thursday to deny standing to a group of conservative states that claimed the law harmed them. It was a major blow — perhaps a decisive one — against the political right's long fight against Obamacare and a sign of the limit of Trump's influence on the justices he appointed.

In the first hours after the ruling, Trump greeted the news with the deafening silence of defeat.

And as President Joe Biden and Democratic congressional leaders scrambled to put out statements in praise of the ruling, most Republicans followed Trump's lead by refusing to give it any extra attention.

Rather than speak individually, House Republican leaders put out a joint news release. In a break with Trump's style, they refrained from attacking the court or its decision while highlighting their distaste for Obamacare, which is formally titled the Affordable Care Act.

"While the Supreme Court ruled today that states do not have standing to challenge the mandate, the ruling does not change the fact that Obamacare failed to meet its promises and is hurting hard-working American families," said the statement, issued by House Minority Leader Kevin McCarthy, R-Calif., Minority Whip Steve Scalise, R-La., and Conference Chair Elise Stefanik, R-N.Y. "Now, Congress must work together to improve American health care."

There was no promise to renew the fight to repeal the law or to mount another court battle over its constitutionality.

House Republicans remember how Democrats hammered them over the repeal effort in the 2018 midterms and easily won control of the House. Now, as they look to take back power, Republicans aren't at all interested in fighting to take health insurance benefits away from millions of Americans.

Former President Barack Obama nodded to the political and legal dynamics Thursday afternoon.

"This ruling reaffirms what we have long known to be true: the Affordable Care Act is here to stay," he said in a statement.

Such an outcome was far from certain last year, when Trump nominated Barrett to succeed the late Justice Ruth Bader Ginsburg. Around the same time, he said repeatedly that the court should overturn Obamacare.

"We know what he thinks because he tells us what he thinks, and he made it clear that he wants his Supreme Court and this nominee to join him in eliminating the Affordable Care Act," Sen. Dick Durbin, D-Ill., said at Barrett's confirmation hearing. "This is his litmus test."

Barrett steadfastly declined to show her hand at the time, following the past practice of nominees in evading senators' questions about ongoing court cases.

Sen. Dianne Feinstein, D-Calif., who led off Democratic questioning, asked her directly about the suit that ended up being decided Wednesday.

"It's a case that's on the court's docket, and the canons of judicial conduct would prohibit me from expressing a view," Barrett told Feinstein.

At the time, many Republicans and Democrats believed Barrett would be inclined to side with Trump, particularly because she had been critical of Roberts' previous opinion upholding Obamacare in an unrelated case.

But only two justices — Samuel Alito and Trump appointee Neil Gorsuch — departed from the majority's opinion Wednesday, which essentially held that the states had no standing to sue because they wouldn't be harmed by an insurance mandate that the justices said is unenforceable. It's unenforceable because Trump and Congress eliminated the law's penalty for people who decline to buy health insurance.

"Unsurprisingly, the States have not demonstrated that an unenforceable mandate will cause their residents to enroll in valuable benefits programs that they would otherwise forgo," Justice Stephen Breyer wrote for the majority. Justice Clarence Thomas, siding with the majority, wrote a separate concurring opinion.

In the end, Trump was wrong about the law, the politics of trying to kill the Affordable Care Act — and the assumption that he could control the votes of his Supreme Court picks.