Bite'm in the ass...

How a swipe at Obamacare in the GOP tax law came back to haunt them

By BERNIE BECKER

GOP lawmakers had one major goal in mind last year when they decided to roll back Obamacare’s individual coverage mandate — to shore up a tax bill they hoped would be a signature achievement of President Donald Trump’s first two years.

They also happened to provide a federal judge in Texas with the ammunition he needed on Friday to declare all of Obamacare null and void.

The result is a tricky political problem for Republicans, who now bear the blame for erasing even the law's most popular provisions — while Democrats have an opening to continue making health care a prime issue in 2020.

And advocates of last year's tax bill say it wasn't what they intended.

"We just wanted to zero out the mandate penalty. And the [budget] score was nice,” said Ryan Ellis, a GOP tax consultant.

Republicans ended the penalty for failing to get health insurance in their 2017 Tax Cuts and Jobs Act as a way to raise some badly needed revenue to help keep the tax cut's price tag under $1.5 trillion.

But it’s what Judge Reed O’Connor seized upon in his ruling. Cutting the mandate, he ruled, means the whole law doesn’t stand up.

“In some ways, the question before the Court involves the intent of both the 2010 and 2017 Congresses,” O’Connor wrote. “The former enacted the ACA. The latter sawed off the last leg it stood on.”

Republicans appear particularly concerned about being blamed for ending the pre-existing condition requirement.

Senate Finance Chairman Orrin Hatch (R-Utah) said Monday he was "proud" Republicans repealed the individual mandate penalty, but, "While this case winds its way through the courts, Congress should ensure that protections for individuals with preexisting conditions remain.”

O’Connor on Friday sided with 20 conservative-led states that argued the mandate penalty was a critical linchpin of the Affordable Care Act and that without it, the entire framework is unconstitutional, including popular provisions like requiring coverage of pre-existing conditions.

“In sum, the Individual Mandate ‘is so interwoven with [the ACA’s] regulations that they cannot be separated. None of them can stand,” O’Connor wrote.

Ellis countered: “This is not widely supported judicial logic on the health care right.”

Republicans initially were hesitant to bring Obamacare into the mix on the tax bill, just months after then-Sen. John McCain (R-Ariz.) ended any chance to repeal the law in 2017. They feared including a mandate repeal would make it harder to pass the bill.

But Republicans also needed new revenues to make the math work on their tax cut, and conservatives like Sens. Tom Cotton (R-Ark.) and Rand Paul (R-Ky.) lobbied for looking toward the individual mandate. The tax law could cut revenues by no more than $1.5 trillion over a decade because of a budget agreement struck by GOP lawmakers that allowed them to pass the tax bill by a simple majority in the Senate, which wouldn't require Democratic votes.

Congressional scorekeepers estimated that gutting the mandate would raise $314 billion over 10 years, and Republicans united behind the idea that targeting one of the least popular parts of Obamacare was better than having to further slice popular tax incentives.

Democrats quickly attacked the Republicans’ choice, pointing to projections from the Congressional Budget Office that found that zeroing out the penalty would hike insurance premiums and leave millions of people uninsured.

A year later, some key conservatives have said they’re not comfortable with O’Connor’s decision, with The Wall Street Journal editorial page likening it to judicial activism, and openly predict that either an appellate court or the Supreme Court will overturn it.

Still, while Republicans might be worried that the ruling could cause them some political headaches over the next two years, they’ve yet to show any regrets about including the mandate repeal in the tax law.

“There's no reason why the individual mandate provision can't be struck down and keep all of the good provisions of the Affordable Care Act, such as coverage for people with pre-existing conditions, the mandated benefits for substance abuse and mental illness treatment, and also allowing young people to stay on their parents' policies until age 26,” Sen. Susan Collins (R-Maine) said on CNN’s “State of the Union” on Sunday.