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Outflanked XXI: A Pre-existing Outflankening

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A reminder that Trump thinks that the Supreme Court should take health insurance away from tens of millions of people, allow insurers to permanently exclude people who contract the deadly virus Trump is exposing them to from coverage, etc. etc.:

The Trump administration asked the Supreme Court late Thursday to overturn the Affordable Care Act — a move that, if successful, would bring a permanent end to the health insurance program popularly known as Obamacare and wipe out coverage for as many as 23 million Americans.

In an 82-page brief submitted an hour before a midnight deadline, the administration joined Republican officials in Texas and 17 other states in arguing that in 2017, Congress, then controlled by Republicans, had rendered the law unconstitutional when it zeroed out the tax penalty for not buying insurance — the so-called individual mandate.

The administration’s argument, coming in the thick of an election season — as well as a pandemic that has devastated the economy and left millions of unemployed Americans without health coverage — is sure to reignite Washington’s bitter political debate over health care.

In his brief, Solicitor General Noel J. Francisco argued that the health law’s two remaining central provisions are now invalid because Congress intended that all three work together.

“Nothing the 2017 Congress did demonstrates it would have intended the rest of the A.C.A. to continue to operate in the absence of these three integral provisions,” the brief said, using the abbreviation for the name of the health care law. “The entire A.C.A. thus must fall with the individual mandate.”

Note that direct quote from the administration’s brief — their argument is literally that Congress repealed the entire Affordable Care Act when it removed the penalty for not meeting the minimum coverage requirement. Needless to say, to describe this argument is to refute it. It’s so stupid even the prime mover behind the “card says Moops” effort to strip people of healthcare acknowledges it’s stupid. Any remotely ethical lawyer would resign rather than putting his name on a ludicrous argument that would have literally deadly consequences if it won, but Noel Francisco is presumably counting on the respectability inexplicably accorded to Trumpites with fancy law degrees, and he’s almost certainly right to do so. And yet the over/under of votes it’s likely to get at the Supreme Court is 4.

Also remember that the administration is parroting the earlier work of various state Attorneys General, most notably Bold Economic Populist Josh Hawley.

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