Texas Lawsuit Threatens Republicans

Robin Vos and Scott Fitzgerald.

Among the questions posed to Wisconsin voters in the most recent Marquette Law Poll was whether the State of Wisconsin should continue or withdraw from a lawsuit to strike down the Affordable Care Act, or Obamacare. Overall, a plurality of respondents believed that Wisconsin should withdraw, by a vote of 48 percent to 42 percent.

More striking, however, is how polarized this issue had become. As the next graph shows, Democrats wanted to withdraw by a margin of 81 percent to 11 percent, while Republicans said continue the suit by 75 percent to 20 percent.

Withdraw from ACA lawsuit?

The lawsuit, called Texas v. United States, was co-led by Texas Attorney General Ken Paxton and then-Wisconsin Attorney General Brad Schimel. It was filed in the Fort Worth Division of the United States District Court for the Northern District of Texas. Not coincidentally, the only district court judge listed for the Fort Worth Division is Reed O’Connor, who had already established himself as hostile to the Affordable Care Act.

Waiting until after the November election, Judge O’Connor ruled unconstitutional the whole act. His train of logic went like this:

1. In an earlier cases, the US Supreme Court upheld the individual mandate—the charge that most without health insurance must pay—by treating it as a tax. As part of the 2017 Tax Cut and Jobs Act, Congress set the mandate to zero dollars. Arguing that a zero-dollar tax is not a tax, the judge declared the individual mandate unconstitutional.
2. Lacking the mandate, the ACA’s ban on discrimination based on pre-existing conditions is unworkable according to the judge. Therefore, the discrimination ban is unconstitutional.
3. Then, he pulls the whole act down: “The Individual Mandate is essential to the ACA, and that essentiality requires the mandate to work together with the Act’s other provisions. … The Court finds the Individual Mandate is essential to and inseverable from the other provisions of the ACA. …. the Court grants Plaintiffs partial summary judgment and declares the Individual Mandate, …  UNCONSTITUTIONAL. Further, the Court declares the remaining provisions of the ACA, … are INSEVERABLE and therefore INVALID.”

Thus, the effort at judge-shopping gained Paxton and Schimel the desired victory. However, the victory was incomplete when O’Connor denied an injunction, leaving the ACA in place pending appeals.

In its January tracking poll, the Kaiser Family Foundation explored what Americans thought about the decision. Strikingly, only 20 percent knew that the judge had declared the ACA unconstitutional. The rest, as shown below, either said they didn’t know or believed that the judge upheld the ACA.

What did Judge Decide about the ACA in Texas v. US?

After summarizing the judge’s decision, the interviewers for the Kaiser poll asked people whether they approved or disapproved of it. Like Wisconsin respondents, more disapproved of the judge’s ruling, as shown in the first column below. But, also like the Wisconsin results, there was a huge partisan divide, with 81 percent of Republicans approving of the decision and 84 percent of Democrats disapproving.

Approved of Judge’s Decision?

As the two right-hand columns in the chart above shows, support declined when those expressing support were given more information. Support declined to 25 percent when told that it would allow people with pre-existing conditions to be charged more or denied coverage. Likewise, support dropped to 31 percent when told the decision would mean that young adults under 26 could no longer stay on their parents’ health insurance.

Every month, the Kaiser Family Foundation tracking poll asks people whether they are favorable or unfavorable towards the ACA. For much of the Obama administration, the ACA was under water with more saying unfavorable than unfavorable. Ironically, the ACA’s fortunes changed with the start of the Trump administration, as can be seen below.

View of Affordable Care Act

As with so many issues these days, where you stand on the ACA depends on where you sit politically. Democrats are much more favorable than independents, who are much more favorable than Republicans. As the next graph shows, the recent growth in net favorability is due to increasing support among Democrats and independents rather than any decline of Republican opposition.

Favorable View of Affordable Care Act by Party

One possible way to bridge the partisan divide on health care is to concentrate on specific issues. As has been pointed out, most of the elements of the ACA poll much better than the whole ACA package. People like the ability, for instance, to keep their children on their health plans.

As Kaiser found, people don’t like giving insurance companies the ability to discriminate based on pre-existing conditions. This explains the recent attempt by Wisconsin’s Republican legislature to ban such discrimination. However, in the absence of Obamacare’s subsidies, this legislation appears to be a recipe to place Wisconsin’s individual healthcare market into the proverbial death spiral, as prices rise and healthier people drop their insurance, causing prices to rise further.

As mentioned in last week’s column, Governor Tony Evers’ proposal to expand Medicaid looks to be an exception to the partisan divide over health care. Across the political spectrum, there is overwhelming support for accepting federal expansion dollars, as the graph below shows. Even among Republican voters, there is a small plurality supporting expansion.

Accept Medicaid expansion funds?

Healthcare was a winning issue for Democrats in the last election in part because of this split among Republican voters.

Under the headline, “U.S. Uninsured Rate Rises to Four-Year High,” the Gallup poll reported that the uninsured rate rose after President Trump took office at the beginning of 2017 and has continued rising during 2018 (the solid black line in the chart below). The chart also shows the estimated percentage of uninsured for Wisconsin and Texas, for three years—2013, the last year before the full ACA was implemented; 2016, the last year of the Obama administration, when uninsured rates hit bottom, and 2017, the first year of the Trump administration.

Estimates from Gallup, based on its polling, are shown with solid lines. KFF estimates, using census data, are shown as dashed lines. Neither organization has released state estimates for 2018.

Percentage Without Insurance (Gallup & KFF)

During the recent election, many Democratic candidates discovered that expanding health insurance was a winning issue. It is a mystery, then, why Republican leaders Robin Vos, Scott Fitzgerald, and Scott Walker were so eager to associate themselves with an effort to take away people’s health insurance. The issue probably helped defeat Walker, yet Vos and Fitzgerald continue to support the ACA lawsuit.

Wisconsin Republicans’ eagerness to associate with Texas is also puzzling. Of all 50 states, it has the highest percentage of people without health insurance.

Most legal observers deride Judge O’Connor’s rationale and predict the appeals courts will reverse his decision, in which ideology got the better of legal analysis. But what if it is upheld? The Trump administration’s success in appointing highly ideological judges adds an element of uncertainty.

While that possibility could be a disaster for those dependent on the provisions of the ACA—particularly those with pre-existing conditions, those whom Walker forced off Badgercare into the ACA exchange, or people in their early twenties on their parents’ plan—but it could also be a political disaster for Republicans, who would be blamed for the suffering they caused. It remains a puzzle why they want to run this risk.