By Robert P. Bomboy
I have never met him in person, but they say the devil is a fine barber and a master of deception. I have been thinking a lot lately about deception.
What brought it to mind is a court decision last month saying, once again, that the Affordable Care Act – which the Republicans originally called Obamacare – is, in part, unconstitutional.
“Obamacare” was not a compliment, of course; they meant it in the beginning as a term of derision: they hated President Barack Obama that much.
You will remember that he signed the health insurance reform into law in 2010. In the decade since then, the Affordable Care Act (or, yes, “Obamacare”) has made millions of Americans eligible for health care they couldn’t previously afford, and it doesn’t matter whether they have pre-existing health conditions or have been denied health insurance in the past.
The battle to create Obamacare was a heck of a fight. With Republicans in control of Congress, only one Republicanin the House of Representatives voted for it in 2009. In the Senate, all the Republicans except big league Hall of Famer Jim Bunning voted against it, and he abstained. Finally, against the threat of a Republican filibuster in 2010, Democrats used a budget reconciliation procedure requiring only 51 Senate votes and got the law passed. Even so, it was a close shave.
Now, about the deception:
In 2017, the Republican Congress passed the bonus-for-billionaires Tax Cuts and Jobs Act, from which the richest one percent of Americans got a jubilant 83% of the tax breaks.
President Trump ballyhooed the huge tax cuts as “a gift for the middle class,” but privately he was telling his multimillionaire cronies at Mar-a-Lago, “You all just got a lot richer!”
When I was in the press room covering the Maryland government in Annapolis, we reporters dug through the state budget looking for snakes – unseen benefits hidden in the tall weeds for rich men and special interests.
That was as nothing here: Among the snakes hiding in the Tax Cuts and Jobs Act was the biggest python that no one had ever seen. In the Affordable Care Act of 2010 was a provision requiring everyone to have health insurance or pay a tax penalty. The Republicans writing themselves the bonus for billionaires in 2017 deliberately cut out the financial tax penalty in the Affordable Care Act – made it zero.
That penalty had been a key part of the Supreme Court’s decision to uphold the law. The court said the penalty amounted to a tax and Congress had the constitutional power to levy taxes. But when the Republican budgeteers cut the penalty to zero some quick wits said it was no longer a tax and was therefore unconstitutional. Hence, the December court ruling with which I began.
The Trump administration, by the way, wasn’t there to defend the law that has been so important to so many millions of Americans. That shows where its heart really is.
“It’s extremely rare for an administration not to defend the constitutionality of an existing law,” said Abbe Gluck, director of the Solomon Center for Health Law and Policy at Yale University. “The administration is not defending any of it — that’s a really big deal.”
The law has been dogged by legal challenges and repeal attempts from the very beginning. I have a suspicious mind like anyone who grew up among politicians, and I can’t stretch it so far that I see a coincidence in the Republicans’ zeroing out the penalty for people not having health insurance in the Affordable Care Act and then suing and screaming that the law is unconstitutional. But I do see a terrible, cruel irony in the Republicans’ slathering $1.5 trillion on the richest one percent and then laying a bear trap at the feet of 20 million Americans who could lose their affordable care.
But last month’s court ruling was a half-full glass. Although it agreed that taking away the financial penalty was bad, the ruling sent the appeal back to the lower court judge, telling him to hold more hearings and decide whether other parts of the law may yet survive. In the meantime, the Affordable Care Act is in full effect.
It is ikely to be months, perhaps even years, before the Supreme Court takes up the law again. “The Affordable Care Act is now part of the plumbing of our nation’s health care system,” said law professor Nicholas Bagley. “Ripping it out would cause untold damage.”
Meanwhile, we can wait, hope, and perhaps elect a Democratic majority in the Senate that – with the House of Representatives – could replace the tax penalty in the law.
Robert P. Bomboy has written for more than 60 national magazines and is the author of six books, including the novel “Smart Boys Swimming in the River Styx.” He taught for more than 30 years in colleges and universities, and he has been a Ford Foundation Fellow at the University of Chicago and in Washington, D.C.