Republicans celebrating in 2016 after they voted to take away insurance from 20 million people and end pre-existing condition protections.

Nebraska Republicans Support Lawsuit Aimed At Destroying The Affordable Care Act

The Republican Party’s opposition to the Affordable Care Act (ACA) is simply pathological. During the debate over the ACA in 2009–10, the GOP shamelessly lied about it — even making the false claim that the bill contained so-called “death panels.” (Do you know anybody who has been hauled in front of a death panel?) Even though the bill was based on Romney Care, no Republicans voted for the ACA when it passed in 2010. Since the law’s passage, the GOP has done everything in its power to sabotage the law. That unethical sabotage has caused premiums to increase by 20% in Nebraska.

A part of that campaign of sabotage have been a series of lawsuits filed by the GOP aimed at having un-elected judges with taxpayer subsidized health insurance to strike down the entire law. The U.S. Supreme Court has already rejected two challenges to the ACA. In the 2012 case, Chief Justice John Roberts was the essential fifth vote to uphold the constitutionality of most of the law. Unfortunately, the price for Roberts’ fifth vote was to make the Medicaid expansion optional for the states.

The most recent legal challenge to the ACA was filed in front of a GOP friendly activist federal judge in Texas. That George W. Bush appointee threw out the entire ACA in a legally specious opinion in December 2017. That decision is now on appeal to the U.S. Court of Appeals for the Fifth Circuit. In a stunning move, the Trump Administration has joined in that lawsuit and asked the 5th Circuit to affirm the lower court and throw out Obama Care in its entirety.

Unfortunately, several prominent elected Nebraska Republican office holders support this dangerous lawsuit. Pete Ricketts and Doug Peterson had the state of Nebraska join this lawsuit when it was filed. Jeff Fortenberry, Don Bacon and Adrian Smith all voted against a resolution in January which allowed the House of Representatives to intervene in opposition to this right wing lawsuit.

The consequences for the country would be catastrophic if Trump and the Republicans “won” this case. Approximately 20 million Americans would lose insurance coverage. Pre-existing condition protections would be eliminated. This would impact nearly 1 in 3 Americans since approximately 102 million people have pre-existing conditions. In addition, the Medicaid expansion would be repealed, the Medicare doughnut hole would return for senior citizens and young adults would no longer be covered by their parents’ insurance policies.

I’m not complacent about the outcome of this lawsuit based upon the opinions of legal experts that the Trump Administration’s legal theory is frivolous in nature. Nor do Roberts’ two previous votes to uphold the ACA give me any sense of confidence in the outcome of this case. (Nonetheless, if the composition of the Supreme Court should not change, I do believe that Roberts would vote to reject a third challenge to the ACA.)

What gives me great concern is if the composition of the nation’s highest court should change. If one of the Democratic appointed justices were to retire or pass away (God forbid), a new Trump appointed justice would most likely vote with Thomas, Alito, Gorsuch and Kavanaugh to invalidate the ACA. This is a very activist and political “conservative” majority on the Supreme Court.

If a runaway “conservative” majority on the Supreme Court were to throw out the ACA, every progressive reform would be vulnerable to a right wing legal challenge. The U.S. Supreme Court has a long history of “conservative” judicial activism. Between 1870 and 1936, an activist “conservative” majority on the Supreme Court threw out numerous laws passed by the elected branches that benefited working Americans. That majority invalidated the minimum wage several times, threw out laws banning child labor and shredded civil rights laws that protected the newly freed African Americans. During Franklin Roosevelt’s first term, five GOP appointed justices threw out most of his New Deal legislation.

I believe the “conservative” majority on the Supreme Court is facing a crisis of legitimacy. This activist majority has already sided with the GOP and the top 1% when it greatly expanded the ability of the wealthy to influence election campaigns with its infamous decision in Citizens United and its progeny. At the same time, the “conservatives” gutted the Voting Rights Act and gave the green light to voter suppression laws that are deliberately aimed at reducing voting among minorities and the young. Moreover, the “conservatives” on the Supreme Court have used novel and unusual First Amendment legal theories to gut the ability of working families to participate in the political process by gutting the rights of unions.

At the same time, there have been some troubling irregularities in the confirmation process of three GOP appointed justices. Clarence Thomas was confirmed by a narrow 52 to 48 margin after he arguably sexually harassed three women and lied about it under oath. Gorsuch was the beneficiary of the seat stolen from Merrick Garland. Finally, Brett Kavanaugh was confirmed despite his serial perjury, poor judicial temperament and background as a ruthless GOP political operative.

It is evident that the GOP is using the so-called “conservative” majority on the Supreme Court to enact its unpopular and regressive agenda by judicial fiat. We need to combat this strategy by expanding the number of seats on the U.S. Supreme Court and the lower federal courts. The number of seats on the various federal courts are set by statute. We need to expand the number of Supreme Court seats to eleven to make up for the theft of the seat stolen from Merrick Garland. Similarly, the GOP refused to confirm any Obama nominated judges in 2016 and are now packing the lower federal courts with young right wingers.

We will not be able to save the federal courts from the top 1% unless we win the 2020 elections. I would recommend to all of my readers that you contribute and/or volunteer for a candidate (or candidates) of your choice in the 2020 cycle. We are facing a national crisis and it’s all hands on deck. Now let’s get it done!

I’m a trial lawyer, a Democratic activist and a sports fan.

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