March 02, 2020 12:45 PM UTC

Cory Gardner In The Dock: SCOTUS Takes ACA Sabotage Case

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• by: Colorado Pols

NBC News reports on good and bad news for Colorado’s #1 enemy of the Affordable Care Act, a.k.a. Obamacare, Sen. Cory Gardner–the U.S. Supreme Court will hear oral arguments this fall in a case brought by Texas to declare the entire landmark 2010 health reform bill unconstitutional, after legislation passed by the GOP-controlled Congress in 2017 kicked a principal mechanism out from under the law:

Since the law was passed, opponents have attacked the individual mandate, a central feature, which requires all Americans to buy insurance or pay a penalty on their income tax. The Supreme Court upheld Obamacare in 2012, ruling that it was a legitimate exercise of Congress’ taxing authority.

But in 2017, the Republican-led Congress set the tax penalty at zero. That led Texas and a group of red states to rule that the revised law is unconstitutional. A federal judge in Texas agreed, ruling that because the tax was eliminated, the law could no no longer be saved as a use of the taxing power. The 5th U.S. Circuit Court of Appeals in New Orleans upheld that ruling by a 2-1 vote in mid-December.

But the appeals court decision ordered the trial judge to reconsider his ruling that the entire law must fall without the glue of the individual mandate holding it together. The Trump administration initially said parts the law could be saved without the individual mandate, but then changed its position to say the rest of the statute could not stand.

The good news for Sen. Cory Gardner in this decision is that the Supremes did not grant a request for an expedited hearing of the case, which could have resulted in the Court issuing a politically fateful decision just a few months before the 2020 election. This is a law which has been helping millions of Americans for nearly a decade, and remains popular despite one of the most vitriolic propaganda campaigns in American history. The pain an adverse decision could inflict on millions of ordinary Americans represents a dire political threat to the law’s opponents. Politico:

[I]t’s unlikely the justices will rule before the election on the lawsuit, which could wipe out the Affordable Care Act’s insurance protections and coverage for millions of people. The court is expected to hear the case during its next term starting in October, but the court did not yet say when it will hear oral arguments…it’s rare that justices review a case before it’s received full consideration in lower courts — and the decision to do so underscores the monumental stakes of a case could upend coverage for millions of people and create chaos across the health care system. [Pols emphasis]

Democrats were able to leverage the lawsuit’s threat to coverage for preexisting medical conditions to retake the House of Representatives in the 2018 midterms. Democratic leaders, eager to run the same playbook this year, have routinely attacked Trump over his support for the lawsuit and the lack of a viable Obamacare replacement.

The bad news, of course, is that Gardner is directly to blame, more than any other public figure in Colorado, for the continuing peril the ACA finds itself in. Gardner voted for the 2017 bill zeroing out the individual mandate, which paved the way for the legal challenge the SCOTUS just agreed to hear. But that’s just the beginning: Gardner voted on innumerable occasions in both the House and Senate to repeal the ACA in its entirety. Gardner voted to repeal the ACA with or without a replacement, and with or without protection for patients with pre-existing conditions who are some of the biggest undisputed beneficiaries of the law.

Because Gardner has relentlessly attacked the Affordable Care Act as a central goal of his career in federal office, trading on just about every falsehood about the law that came and went as facts caught up with the spin, Gardner is even more vulnerable to voter backlash against Republicans for endangering the literal health of millions of Americans without providing any alternative. Zeroing out the individual mandate was supposed to be just one component of a broader Republican replacement for the Affordable Care Act–but because the GOP majority never put a replacement plan together, all they did was damage.

In theory, delaying the potentially devastating impact of this decision until after the 2020 election is good for Cory Gardner. But for a Senator already down by double digits, the needless threat to the health of millions of Americans the oral arguments in the case will reveal to voters is probably enough. On this issue, Cory Gardner’s day of reckoning has been a long, long time coming.