As the House prepares to vote today on the GOP tax reform bill that will now include a repeal of the Obamacare individual mandate with the Senate rewrite (and there are indications they have the votes to pass it), it’s worth remembering that back in 2012, when George W. Bush-nominated Chief Justice John Roberts sided with the progressive wing of the Supreme Court in keeping Obamacare, opting instead to declare the individual mandate a tax, “real” conservatives threw an absolute fit even while Democrats praised the move.
From a 2012 Baltimore Sun article following the decision:
Word had barely come down that the Supreme Court majority was upholding the Affordable Care Act when incensed conservatives began printing up “Impeach Jon Roberts” t-shirts and a hacker had altered the chief justice’s title on his Wikipedia page to “Chief Traitor of the United States.”
On a freshly minted “Impeach John Roberts” Facebook page, one tea party “patriot” wrote: “Welcome to fascism. Thanks to this horrible decision from the 4 liberal justices and John Roberts there is zero limit to what the government can force us to do.”
Outside of the perpetually alarmed right-wing loony bin, however, Mr. Roberts was receiving praise for acting as the fair umpire he promised to be when he was first confirmed by the Senate. Of all the major players with much to win or lose in the challenge to the Democrats‘ monumental health care law, Mr. Roberts may have gained the most.
Obviously, he will not be impeached, no matter how loud the howling from the hard right. Instead, he has improved his own reputation and begun building a balanced legacy as chief justice.
My how the tide has turned, because now that conservatives know they can’t count on several within their party to support a full repeal of Obamacare (do I need to name them?), Roberts’ defense of the mandate under the “broad congressional power to raise taxes ‘for the general welfare'” starts to look like a very useful tool. And, more to the point, a perhaps prescient and brilliant move by the vilified Justice.
Democratic opponents of the most recent Senate tax reform proposal, unveiled Tuesday, have attacked GOP lawmakers for attempting to disguise their repeal of the individual mandate, which will save $300 billion in federal revenue and result in roughly 13 million more uninsured over the next decade, according to the Congressional Budget Office.
“This is turning a tax bill into a health care bill, with our colleagues getting an hour’s worth of notice,” Democratic Sen. Ron Wyden of Oregon, the top Democrat on the Finance Committee, told The New York Times.
Democratic Sen. Chuck Schumer of New York called the move “a back-door approach to get ‘Trumpcare.’”
GOP Sen. John Thune pushed back Wednesday against criticism from Democrat Sen. Ron Wyden and others, who warned that repeal “will cause millions to lose their healthcare and millions more to pay higher premiums” (more on that below), and that the individual mandate repeal should not be included in a tax reform bill, presumably because Democrats believe it’s an attempt to combine two unrelated policy objectives.
He and the country have John Roberts to thank for that.
Tax reform didn't become Obamacare repeal on Tuesday by act of Senate Republicans, @sarahkliff. SCOTUS upheld the individual mandate by construing it as a tax in 2012. Accordingly, it was then that mandate reform necessarily became tax reform. https://t.co/9hhq0jEiLe
— George Scoville (@ScovilleLaw) November 16, 2017
And briefly, on the topic of of the 13 million who might lose coverage based on Congressional Budget Office numbers…
Ms. Kliff makes quite a case for how those numbers are used to sway people polled on the popularity of the mandate in her piece for Vox. Indeed, she writes:
The Kaiser poll shows what happens when people are asked whether individuals support repealing the individual mandate. They then followed up with a second question, about whether their opinion would change if they heard that it would increase the number of people without health insurance by 13 million over the next year.
Support for mandate repeal dropped by 17 percentage points after hearing that fact.
The problem is that she uses the word “fact” far too easily there. CBO projections have fluctuated very recently because the “CBO concedes that its estimates are ‘inherently imprecise’ because it’s ‘difficult’ to predict how insurers, individuals and other parties would respond. That’s for sure: ObamaCare enrollment is 60% below what CBO estimated,” writes the Wall Street Journal.
All of this is causing even CBO to revisit the accuracy of its mandate forecasts. CBO says in its most recent estimate that the agency has “undertaken considerable work to revise” methods on estimating the mandate repeal, and that this new thinking isn’t reflected in its latest work. In other words, CBO is waking up to the reality that the mandate is a limp tool for encouraging people to buy health insurance.
The tides are just turning all over the place. Hopefully Democrats, if the tax reform bill is successful, will graciously give the repeal of the mandate a chance to work. Republicans, after all, did nothing to overturn Obamacare for over 5 years. Had it begun to actually work, the repeal talk may have gone away. So give their idea a chance, progressives.
And conservatives, apologize to Chief Justice Roberts.