Congress Can Easily End Obamacare’s Legal Troubles

(Bloomberg Opinion) -- “Everybody I know in the Senate — everybody — is in favor of maintaining coverage for pre-existing conditions,” Senate Majority Leader Mitch McConnell said in June. “All Republicans support people with pre-existing conditions, and if they don’t, they will after I speak to them. I am in total support,” President Trump tweeted in October.

This was during the midterm election campaign, when the Republicans were pedaling backward to convince America that they’d no intention of taking away the protections of the Affordable Care Act. Ignore the efforts in Congress to repeal the law, they told voters; don’t worry about the Justice Department joining a legal challenge to ACA, asking to strike down coverage of people with preexisting conditions at no extra cost.

The assurances were worthless. A court has not only thrown out protections for preexisting conditions; it has ruled the ACA as a whole unconstitutional — including the Medicaid expansion, the requirement that large employers offer health-insurance benefits, the subsidies for low-income buyers of insurance on the health exchanges, even the exchanges themselves. All because last year Congress zeroed out the tax penalty for failing to buy health insurance — the so-called individual mandate.

For the moment, nothing will change. The ACA will stand while appeals are filed, probably until the case reaches the Supreme Court. The new ruling may well be overthrown, but those who depend on the ACA are left stranded in uncertainty. The timing could hardly be worse. Enrollment in individual insurance is already down this year, and the population of uninsured Americans stands to rise.

It’s maddening that the ACA’s legal troubles could be easily resolved. Congress needs only to restore the individual mandate’s tax penalties. Keep in mind, the mandate still exists: Americans are still required to have health insurance. All Congress did last year was set the penalty for failing to comply at zero.

Lawmakers could just as easily restore it. Waiting and hoping for higher courts to overturn the new ruling risks throwing the U.S. health-insurance system into chaos. Congress needs to put the ACA back on firm legal ground.

Democrats in the new House of Representatives will doubtless be willing to act. If McConnell and Trump were telling the truth during the campaign about protecting people with preexisting conditions, they won’t hesitate to help fix this problem.

Editorials are written by the Bloomberg Opinion editorial board.

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