Supreme Court faces Republican pressure to be activist and scrap Obamacare. How ironic.

It’s not the high court’s job to give the GOP the laws they couldn’t pass in the legislature.
Image:  Supporters of the Affordable Care Act celebrate after the Supreme Court up held the law in the 6-3 vote at the Supreme Court in Washington
Supporters of the Affordable Care Act celebrate after the Supreme Court upheld the law in a 6-3 vote on June 25, 2015.Joshua Roberts / Reuters file
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By Leah Litman, assistant professor of law at the University of Michigan Law School

It’s not the Supreme Court’s job to give Republicans the laws they couldn’t pass in the legislature. But in the case before the court Tuesday, the Trump administration implies that it is, as the administration is asking the court to peel back some of the most significant provisions of the Affordable Care Act after Congress failed to dismantle the law. The case, and another, potentially more far-reaching one at the appellate level, will reveal whether the Republican-controlled court is nonetheless willing to perform that role.

It is a deeply ironic turn, since Republicans have for years maintained that it is the courts’ job to interpret legislation, not make it. In the ACA cases, however, they are insisting that the court make laws that Republicans lacked the votes to pass, rather than interpret laws that Republicans actually did pass.

It is a deeply ironic turn, since Republicans have for years maintained that it is the courts’ job to interpret legislation, not make it.

The Supreme Court case argued Tuesday — actually a set of consolidated cases — examines whether the federal government must pay the more than $10 billion that it promised health insurance companies under the ACA. It’s a weighty issue in its own right, but even more so because of the clues it might provide about how the court will view the ongoing litigation that challenges the entirety of the ACA. That litigation is currently pending before the U.S. Court of Appeals for the Fifth Circuit in Texas.

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Currently the ACA requires insurance companies to sell policies to individuals with preexisting conditions at similar rates as policies to individuals who are healthy. Since insurance companies can lose a lot of money from this requirement, the federal government established the “risk corridor” program as part of the law. The program promises that the federal government pays insurance companies for the losses they incurred over a few years.

But in an attempt to undermine the ACA, some Republicans sought to eliminate the federal government’s obligation to compensate insurance companies for the short-term losses they experienced by passing a rider blocking the funding, leading to the consolidated suit involving three insurers (Maine Community Health v. US, Land of Lincoln Mutual Health Insurance Co. v. US, and Moda Health Plan, Inc. v. US). In those cases, the insurers are asking the court to conclude that the rider did not eliminate the government’s obligation to pay them.

The risk corridor cases are significant on their own, in no small part because of the huge amount of money at stake. The cases also have broader implications for the government’s ability to be a credible business partner: If private parties can’t rely on the government’s promise to pay its obligations, then they will be much more reluctant to enter public-private partnerships with the government in the future.

But the consolidated suit is additionally significant because it shares important parallels with the ongoing litigation that challenges the entirety of the ACA, and could therefore provide some clues about whether the court might be willing to pull the trigger on striking it down if it buys the Trump administration’s argument.

Congress had previously considered a bill that would have prohibited the federal government from using its own money to pay insurers under the risk corridor program. But that bill failed — there weren’t enough votes to pass it.

Instead, Congress passed an appropriations rider that said only that none of the funds in the appropriations bill or a Medicaid fund could be used for payments in the risk corridor program. (An appropriations rider is an amendment tacked onto an appropriations bill, which is how Congress authorizes the federal government to spend money.) In other words, Congress temporarily stopped the government’s payout to insurance companies under a particular appropriation; it didn’t eliminate the underlying obligation to eventually pay the insurance companies.

That’s where this lawsuit comes in. The federal government is asking the court to interpret the appropriations rider to do something that Congress could not — eliminate the government’s obligation to pay insurers under the ACA. To support that argument, the government cites (and the court of appeals relied on) some statements in the legislative history, including the statement by the Republican chairman of the House Committee on Appropriations boasting that the appropriations rider meant the government could “never pay” the risk corridor obligations.

That is the same thrust of the federal government’s argument in the litigation challenging the Affordable Care Act before the Fifth Circuit. In that case, the federal government is arguing that the then-Republican-controlled legislature amended the ACA’s minimum coverage requirement in a way that made the ACA unconstitutional, and that the Republican-controlled legislature intended to demolish the rest of the ACA along with it, including the protections for people with preexisting conditions.

We will soon know whether the court will give in to their demands, and, in the process, launch a new era of Republican jurisprudence.

This argument has the same problems. The Republican-controlled Congress tried to pass legislation that would have eliminated the ACA’s protections for people with preexisting conditions, but they did not ultimately have the votes to do so. The legislation that the Republican-controlled Congress ultimately passed — setting the tax for failing to purchase health insurance at zero dollars — did not eliminate the ACA’s protections for people with preexisting conditions. And it is not the responsibility or the role of the federal courts to pass that failed legislation for them.

In the ACA cases, Republicans are insisting that the court make laws that they lacked the votes to pass even though Republicans have made a big deal out of opposing that kind of judicial activism in the past. We will soon know whether the court will give in to their demands, and, in the process, launch a new era of Republican jurisprudence in which the court acts as nothing more than a set of GOP legislators.