Last week, the Trump administration asked a federal appeals court to repeal the Affordable Care Act in its entirety. Their argument is fundamentally flawed in numerous ways, not the least of which is the fact that it relies on a dissenting opinion that is explicitly at odds with a binding decision by the Supreme Court’s majority.
On Wednesday, a handful of conservative groups weighed in with amicus briefs supporting this attack on Obamacare. They include an organization founded by failed U.S. Senate candidate Roy Moore (R), Citizens United (yes, that Citizens United), a very short brief authored by one of Trump’s personal lawyers, and two anti-vaxxer groups.
The case is Texas v. United States.
Last month, a very different mix of groups filed briefs urging the court not to repeal Obamacare. That, much longer list of organizations, includes many of the major players in health care — such as the American Medical Association, the American Academy of Pediatrics, the American Hospital Association, the Catholic Health Association of the United States, the American Cancer Society, the American Heart Association, AARP, the Blue Cross Blue Shield Association, and a number of economists and legal scholars.
Meanwhile, the only health care focused groups siding with Trump are the two anti-vaxxer organizations. The Association of American Physicians & Surgeons is a conservative group closely associated with Sen. Rand Paul (R-KY) that, according to the New York Times, “publicized discredited medical theories, including possible links between vaccines and autism and between abortion and an increased risk of breast cancer.”
Meanwhile, the Citizens’ Council for Health Freedom distributed a document urging people to “think twice before getting the flu vaccine.” Though that document offered no medical reason why flu vaccines are harmful, the organization was concerned that “many hospitals force doctors, nurses and other workers to wear masks or lose their jobs if they choose not to be vaccinated.”
In case there’s any doubt, none of these briefs make sound legal arguments. The anti-vaxxers rely on the same dissenting opinion that forms the backbone of the Trump administration’s brief, and they also make the unique argument that not repealing Obamacare in its entirety would be an “improper judicial line item veto” — though the Supreme Court struck down a law permitting the president to make line item vetoes, courts invalidate only some parts of a broader law all the time.
Similarly, the Roy Moore organization makes an argument that was rejected by Judge Brett Kavanaugh in 2015, and that would also require courts to strike down President Ronald Reagan’s 1986 tax reforms. The brief from Jay Sekulow, one of Trump’s personal lawyers, doesn’t even engage with the two most important issues in the case — whether any court has jurisdiction to hear this case, and whether the bulk of the law can be saved if courts strike down a single provision that literally does nothing at all.
Yet, despite the weakness of the arguments against Obamacare, and despite the fact that the only groups willing to defend the Trump administration’s effort to repeal the law is a ragtag band of cranks and science-deniers, there is a very real chance that the appeals court hearing this case will back Trump’s play.
Eleven of the United States Court of Appeals for the Fifth Circuit’s 16 active judges are Republicans. Nine of them are hardline conservatives who are likely to back nearly any argument that would undercut Obamacare. Five of the Fifth Circuit’s members are Trump judges.
The Trump administration, in other words, is betting that they’ve stacked the courts with enough political hacks that they can convince the judiciary to do what Congress quite explicitly refused to do during Trump’s time in office — repeal the entire Affordable Care Act.