(Bloomberg Opinion) -- Amid all the attention being paid to Medicare for All and other proposals for health-care reform, you might not have noticed that the current system is once again under legal assault. It’s for the courts to decide the merits of this new challenge and to say in due course whether the Affordable Care Act — Obamacare — can stand. In the meantime, President Donald Trump’s administration should wake up to what’s at stake for millions of Americans and start speaking up on their behalf.
Last year, a group of states led by Texas began this fresh attack. Their opening was a 2017 revision to the law that set the penalty for defying the “individual mandate” at zero. This arguably unmoored the ACA from its constitutional foundations, as laid down by the U.S. Supreme Court in 2012. In that ruling, the penalty for defying the mandate to obtain insurance was deemed to be a lawful exercise of Congress’s taxing power; now that the tax is zero, this argument no longer applies, according to the new challenge, so the mandate becomes impermissible under the Constitution’s commerce clause. A federal judge embraced this approach, and ruled the law invalid. The case, Texas v. U.S., is being appealed.
The Trump administration has taken no clear or consistent position. First, it supported the plaintiffs in part, saying the mandate and other provisions should be struck down, but that the law as a whole ought to stand. Then, it applauded the judge’s ruling and said the ACA should be overturned. Now, it’s saying that the ruling should apply, but only in the states bringing the case. What it will say when it next offers an opinion is anybody’s guess.
Here’s a suggestion. The administration should be explaining that the result of striking down the ACA with no good alternative in place would be something close to chaos. Some 20 million people — those who benefited from the law’s Medicaid expansion or qualified for subsidized private plans — might lose their insurance. But that’s not all. More than 100 million people in the U.S. have preexisting conditions; without the protections afforded by the ACA, they’d face higher premiums and out-of-pocket costs. There’d be knock-on effects for people not directly affected. And the disruption could be serious enough to hurt the broader economy.
The administration keeps promising a comprehensive replacement for Obamacare, but there’s no sign yet of anything plausible. Until the administration has such a plan, and can explain how it will make things better for most Americans, its aim should be to stabilize and improve Obamacare, not see it undermined haphazardly and without regard to the consequences. Until its officials have something better to suggest, it ought to stop equivocating on this legal challenge, explain to the courts what’s at stake, and argue for the ACA to be put on a firm legal footing.
Editorials are written by the Bloomberg Opinion editorial board.
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