By Steve Brawner, © 2018 by Steve Brawner Communications, Inc.

Remember last year when congressional Republicans failed to repeal Obamacare after talking about doing so for years? It turns out they may have succeeded, fully or partly, by acting indirectly.

In December, Congress passed the Tax Cut and Jobs Act, which all six members of Arkansas’ congressional delegation supported. The legislation ended Obamacare’s penalty for failing to comply with the individual mandate to buy health insurance. The penalty goes away at the end of this year.

To understand why that’s important, you have to look back to 2012, when the U.S. Supreme Court ruled that the Affordable Care Act – Obamacare – was constitutional in National Federation of Independent Business v. Sebelius. The court ruled that Congress could not compel individuals to purchase insurance. However, it said the mandate’s penalty was a “tax,” which Congress can enact. Chief Justice John Roberts, appointed by President George W. Bush, wrote that opinion. That’s how the individual mandate survived.

Now that there’s no tax, a Texas-led coalition of 20 states, including Arkansas under Attorney General Leslie Rutledge, is suing the federal government in hopes of having the entire law declared unconstitutional. The lawsuit says that without the individual mandate, the law is now “an irrational regulatory regime governing an essential market.” 

The suit says the individual mandate is the “heart” of the Affordable Care Act. One of the act’s main goals was to insure more people. To make the numbers work, it had to bring young, healthy Americans who don’t need much medical care into the insurance system. (It was not very successful in achieving that goal because the penalty is still much cheaper than insurance.) Meanwhile, Obamacare instituted a requirement known as “guaranteed issue,” meaning insurance companies can’t deny coverage because of pre-existing conditions. You can’t have guaranteed issue without some kind of mandate, because otherwise people could just remain uninsured, pay nothing into the system, and then obtain coverage when they get sick. The system can’t work that way.

The 18 attorneys general and two governors participating in the suit are all Republicans. Sixteen states and the District of Columbia are defending the law. All have Democratic attorneys general, although Minnesota is participating through its Department of Commerce.

That’s how government works these days. Because elected Democrats and Republicans cannot legislate together in Congress, issues like these are decided in court, or by presidential executive order, or through regulation, or just by muddling through. On the bright side, it’s better than a dictatorship.

What happens next?

No one can predict the future. The Justice Department under Attorney General Jeff Sessions has declined to defend parts of the law, which is unusual, but it disagreed with the lawsuit by saying other parts could still stand. Obamacare is, after all, much more than just the mandate. Regardless, thanks to the tax cut, the Affordable Care Act is on shakier legal ground than it’s been since 2012.

If the courts were to declare the entire act unconstitutional, or if Obamacare were simply dismantled piece by piece, then “going back to the way it was” isn’t realistic. First, as life teaches us, you never can go back completely. Second, do we want to return to the days when insurance companies could deny coverage because of a previous condition, or kick people off the rolls because their care cost too much? If the ACA were to go away tomorrow, then 274,810 Arkansans would lose insurance under the Arkansas Works program. Hospitals again would have to provide significant amounts of uncompensated care, and some rural ones in Arkansas probably would close. They have elsewhere.

That doesn’t mean we must have Obamacare, or whatever we have now. It means Congress should try to fix the system’s flaws now in a bipartisan way, and it should act quickly and responsibly to pass a replacement if the Affordable Care Act were declared unconstitutional or significantly weakened by a court decision. American business can deal with good laws and bad laws, but it doesn’t like uncertainty or chaos. Unfortunately, Congress doesn’t have a great track record of acting quickly, responsibly, and in a bipartisan way in recent years.

If a Republican-led Congress ever did replace the law, changes would include more block grants where states would be given money but with fewer strings attached. At the same time, some of Obamacare’s features, such as guaranteed issue, might remain.

I guarantee the name would change, though.