John McClaughry: False Alarm - The Supreme Court and the Affordable Care Act

Sen. Patrick Leahy and five of his Democratic colleagues on the Senate Judiciary Committee have repeatedly stoked fears that a conservative Supreme Court, including Justice-to-be Amy Coney Barrett, will destroy the Obama Affordable Care Act (ACA) of 2010. That, they say, would leave 20 million Americans without health care coverage, especially coverage for preexisting conditions.

This is rank partisan fearmongering, and anybody willing to bet that will happen should demand hundred to one odds. Let’s look at how things got to this point.

In 2009 President Obama proposed tax credits to help middle income families buy health insurance covering very generous “essential benefits.” Early the following year the House Democrats passed a bill mandating that all individuals not covered by Medicare, Medicaid, Veterans, or Employer Sponsored Insurance pay a tax for not having government-approved coverage. (This is the mandate that candidate Obama emphatically opposed in a 2008 debate with Hillary Clinton.)

The House bill included Sec. 401, forthrightly titled “Tax on Individuals Without Acceptable Health Care”. But Democratic Senators (including Sen. Leahy) balked at advancing a bill enforced by a politically dangerous new tax provision. They scrapped the House-passed bill and passed their own bill founded on the power to Congress to regulate interstate commerce. The Senate version was duly enacted in March 2010.