Jason Sattler

Opinion columnist

Republicans have never found a convincing argument to kill off the Affordable Care Act. But now they might have found the court that may murder it anyway.

And this could be the finest example yet of the success of a conservative legal movement that figured that the real unacknowledged legislators of our time are our courts. They can find a partisan means to justify any end — from partisan gerrymandering to ending health coverage for a population the size of New York state.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit heard arguments in Texas v. the United States from the Trump administration and 18 Republican-run states that would choke out all or most of the law that has helped 20 million Americans gain health insurance.

Medicaid expansion, subsidies that help workers buy coverage, protections for Americans with preexisting conditions, closing the Medicare Part D "donut hole" for prescription medication, zero-copay coverage for preventive care, the end of limits on out-of-pocket payments. … All of this and more could be gone if the two Republican-appointed judges on the panel decide to uphold some or all of a lower court ruling that guts the entire ACA.

Then it would be up to the five conservative Supreme Court justices (or more by the time this case reaches it in 2020) to finally finish off Obamacare.

This would be an extraordinary outcome given that nothing about any of this makes a lick of sense.

Conflicting arguments that make no sense

“The case should never have been taken seriously,” wrote Nicholas Bagley, a law professor at the University of Michigan and a former Justice Department attorney. “The red states that brought the suit don’t have standing to bring it; Congress introduced no constitutional defect into the Act by zeroing out the mandate penalty; and the proper remedy for any constitutional defect is to sever the mandate, not invalidate the whole ACA.”

When Republicans zeroed out the mandate as part of their tax cuts in 2017, they removed any requirement for Americans to buy insurance. But this case pretends there is still a “command” to buy insurance.

Trump appointee Kurt Engelhardt echoed this argument by calling the now irrelevant mandate the “linchpin” of the now supposedly unworkable law. "Congress could have adopted a severability clause when it adopted it in 2010," the judge said. "It seems like it did the opposite."

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This not only echoes the Republican case that without the mandate the entire law should fall apart. It is the complete opposite of what the Trump administration argued over and over, when it repeatedly volunteered arguments and data that show the law working quite well without it.

Even conservatives call ACA case 'absurd'

This is just one of many absurdities that have caused even conservative legal experts like Jonathan Adler, who backed previous challenges to the ACA, to call this case “absurd.” But the absurdity is the point.

By refusing to defend the ACA in court, the Trump administration might have left the tens of millions of Americans who’ve gained coverage without anyone with legal standing to defend them. And even if the court decides that the coalition of Democratic attorneys general led by California’s Xavier Becerra has standing to defend the law, the law could prove to be irrelevant.

The point has always been to deny Americans the health insurance that was secured for them when the ACA was signed into law. And Republicans have been remarkably successful at this.

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Thanks to a 2012 Supreme Court ruling that made Medicaid expansion optional instead of required, 14 states have turned it down. This has left an estimated 2.5 Americans without coverage that these states pay for anyway.

As Medicaid expansion has proved popular even in red states, Republicans have adopted another poison pill in the form of bureaucratic requirements to prove that recipients are working. These burdens could leave up to 800,000 additional Americans uninsured, which would match the decline in children covered by Medicaid and the Children's Health Insurance Program in 2018 alone.

Democrats must try harder to cover people

The November elections, when Democrats won the House by the largest popular-vote margin in the history of American midterms, marked the first time Republicans paid a real cost for their efforts to suffocate the ACA. And while Democrats are united in defense of the law, they’ve never been as ruthless in the pursuit of covering Americans as Republicans are in their lust to uninsure them.

Michigan’s new governor, Gretchen Whitmer, has a chance to save about 70,000 people from the useless work requirements signed into law by her Republican predecessor. Yet she hasn’t acted. And the three states with the largest populations that could benefit from Medicaid expansion are also three of the nation’s key or emerging swing states —Texas, Florida and Georgia.

A Harvard study of the Massachusetts law that served as the model for the ACA found “one life saved for each 830 people gaining insurance.” This means if Republicans in Congress had finished off the law they've spent a decade vowing to kill, they would have put thousands of lives at risk.

But that’s the genius of the GOP’s focus on the courts. With an appointment that lasts a lifetime, you don’t have to worry about the consequences of leaving 20 million uninsured. And if it works for the ACA, watch out. Medicare, Medicaid, Social Security and any program conservatives have long reviled but lacked the audacity to repeal could be next.

Jason Sattler, a writer based in Ann Arbor, Michigan, is a member of USA TODAY’s Board of Contributors and host of "The GOTMFV Show" podcast. Follow him on Twitter: @LOLGOP