Kansas and Missouri AGs on the losing side as Supreme Court upholds Obamacare — again

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Kansas Attorney General Derek Schmidt and Missouri Attorney General Eric Schmitt were on the losing side of Thursday’s Supreme Court ruling that upheld Obamacare. But the defeat may be a blessing for their political ambitions.

Schmidt, a candidate for Kansas governor, and Schmitt, running for U.S. Senate in Missouri, were among 18 Republicans attorneys general who sued to overturn the Affordable Care Act (ACA), former President Barack Obama’s signature health law.

They were led by Texas Attorney General Ken Paxton, who has partnered closely with Schmitt on challenges to President Joe Biden’s agenda.

The court ruled 7 to 2 that the states and two individual plaintiffs had not been harmed by the ACA in a way that gave them standing to sue. The decision keeps the ACA intact, including popular provisions that protect those with pre-existing conditions and allow adult children to remain on their parents’ insurance plans until age 26.

While Schmidt and Schmitt lost in the courtroom, the political fallout from victory could have been far worse.

The Republican attorneys general will have endeared themselves to conservative activists through their involvement in the case. But now they won’t have to grapple with the potential policy consequences of striking down the law.

Had the lawsuit succeeded, it would have invalidated insurance coverage for millions of people nationwide and thrown the healthcare system into upheaval.

Millions of people have received health coverage through expanded Medicaid or state and federal health care exchanges under the ACA. The ruling ensures those people will keep their coverage.

Schmidt, who has served as Kansas attorney general since 2011 and has been involved in multiple legal efforts against the ACA, accused the high court of shirking its duty by rejecting the case on the issue of standing.

“It is disappointing that after all this time and effort, the U.S. Supreme Court still declined to reach the merits and answer the important constitutional question presented: By what authority does Congress order Americans to buy insurance? That important question about constraints on the limited, enumerated federal powers of the federal government will have to wait for another day,” Schmidt said in a statement.

Schmitt, who has been Missouri attorney general since 2019, touted an unrelated case his office filed against generic drug manufacturers as an example of his commitment to affordable health care. He also downplayed the Supreme Court defeat by noting the case was decided on procedural grounds.

“We’re certainly disappointed in the Supreme Court’s decision today, and that the case wasn’t decided on its merits but rather procedural grounds,” Schmitt said. “As Missouri’s Attorney General, I have a solemn obligation to defend the Constitution of the United States and the Constitution of the State of Missouri - that’s exactly what I did in this case and what I will continue to do.”

Missouri first joined the lawsuit against the ACA in 2018 under then-Attorney General Josh Hawley.

Hawley, now in the U.S. Senate, said he was not surprised by the ruling based on the questions the justice asked at oral arguments, which focused largely on whether the states had standing. Hawley stood by his decision to join the case in the first place.

“The core principle is that the individual mandate, which is the core of Obamacare, is unconstitutional and I think the court should have said that the first time around,” said Hawley, a former clerk for Chief Justice John Roberts, who wrote the 2012 opinion that upheld the ACA in a previous case.

In 2012, the court determined that the penalty for not buying insurance under the individual mandate was constitutional under Congress’ taxing authority. After Congress zeroed out that penalty in 2017 under then-President Donald Trump, the GOP attorneys general sought once again to overturn the law.

The defense of the ACA was handled by Democratic attorneys general after the Trump administration declined to defend the law. The Democrats blasted their GOP colleagues Thursday for pursuing the case.

“They are obsessed with trying to tear away these protections for millions of Americans… and they lose over and over again,” said Washington State Attorney General Bob Ferguson on a Zoom call with reporters Thursday afternoon.

Asked if Thursday’s ruling would finally put an end to the decade-long cycle of litigation over the ACA, Montana Democratic Sen. Jon Tester shook his head.

“I have no idea. It should, but who knows?” he said.

The ruling means that lawmakers won’t have to scramble to pass a fix to preserve the ACA’s most popular provisions.

Hawley, who has a son with a bone disorder, repeatedly pledged as a candidate in 2018 to preserve protections for people with pre-existing conditions, even as he was signed onto a lawsuit seeking to strike down the law that created those protections.

Hawley said Thursday he was unsure whether Congress would have been able to pass a replacement if the court had struck down the law.

But he said lawmakers should move forward with legislation offered by West Virginia Democratic Sen. Joe Manchin and Maine Republican Sen. Susan Collins during the previous Congress that would preserve these protections but also allow people without pre-existing conditions to purchase plans that offer less coverage than currently required by the ACA.

“The key thing is we’ve got to figure out a way to give people who want to have options and choices more choice, while not basically excluding folks with pre-existing conditions,” Hawley said. “We don’t want folks with pre-existing conditions to be having to pay double, triple.”

Kansas Gov. Laura Kelly celebrated the ruling.

Kelly, a Democrat who had opposed the state’s involvement in the lawsuit, called for Kansas to expand Medicaid in the wake of the ruling.

“Today’s Supreme Court decision is a victory for more than one million Kansans with a preexisting condition and the future health of our workforce,” Kelly said in a statement.

“It’s clear that the Affordable Care Act is the law of the land, and it’s time for Kansas to join 38 states and the District of Columbia by expanding Medicaid to support our economic growth, protect our rural hospitals, and provide quality, affordable healthcare to 165,000 Kansans.”

Kelly will face Schmidt in the 2022 general election if the attorney general prevails in the Republican primary against former Gov. Jeff Colyer, another vocal opponent of the ACA.

Missouri voters approved Medicaid expansion last year under the ACA, but Gov. Mike Parson rescinded the state’s expansion plan after the Missouri General Assembly refused to fund it.

The matter is currently being litigated. Thursday’s ruling likely serves as a boost to expansion advocates suing the state.

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