Surprise Justice move on ObamaCare puts GOP in bind

The Trump administration’s surprise call for the courts to strike down ObamaCare upended Capitol Hill on Tuesday, putting Republicans in a bind while giving Democrats new talking points on one of their favorite issues for the 2020 elections.

GOP lawmakers for the most part were reluctant to even talk about the Justice Department’s decision to call for all of ObamaCare to be struck down in a court filing.

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If the courts agree with the Justice Department, it would dramatically change the way health care is now delivered in the country, and insurance companies were among those criticizing the administration’s decision.

For the GOP, it shifted the political discussion from a more welcome storyline about the end of special counsel Robert MuellerRobert (Bob) Swan MuellerFox News legal analyst says Trump call with Ukraine leader could be 'more serious' than what Mueller 'dragged up' Lewandowski says Mueller report was 'very clear' in proving 'there was no obstruction,' despite having 'never' read it Fox's Cavuto roasts Trump over criticism of network MORE’s probe to health care — the issue Democrats see as helping them win back the House majority last fall.

House Minority Leader Kevin McCarthyKevin Owen McCarthyHouse Republicans 'demand the release of the rules' on impeachment GOP leader defends Mulvaney amid backlash over quid pro quo comments Republicans seek to delay effort to censure Schiff after Cummings' death MORE (R-Calif.) deflected a question about the ObamaCare case at his leadership press conference and told reporters to call his office. Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellMcConnell: Trump's troop pull back in Syria a 'grave strategic mistake' Overnight Defense — Presented by Boeing — Trump insists Turkey wants cease-fire | Fighting continues in Syrian town | Pentagon chief headed to Mideast | Mattis responds to criticism from Trump TSA head rules himself out for top DHS job   MORE’s (R-Ky.) office had no immediate comment.

Democratic presidential candidates, for their part, quickly denounced the move.

“In 2020, we need to elect a president who will make health care a right,” Sen. Kamala HarrisKamala Devi HarrisHarris campaign releases web video highlighting opposition to death penalty Sanders seeks spark from Ocasio-Cortez at Queens rally Biden seeks to fundraise off fact he's running out of money MORE (D-Calif.) wrote on Twitter.

Senate Democratic Leader Charles SchumerCharles (Chuck) Ellis SchumerTrump touts Turkey cease-fire: 'Sometimes you have to let them fight' Mattis responds to Trump criticism: 'I guess I'm the Meryl Streep of generals' Democrats vow to push for repeal of other Trump rules after loss on power plant rollback MORE (N.Y.) said the administration’s move ties an “anchor around the neck of every Republican for the next two years.”

Many Republican lawmakers declined to take a firm position on whether they support or oppose the Trump administration’s move, but their guarded responses illustrated the difficulty of the issue for them.

McCarthy’s spokesman issued a statement later on Tuesday that did not explicitly spell out McCarthy’s position on the legal case. It did call ObamaCare a “broken law” and said that Republicans have been clear that “Americans with preexisting conditions will be protected.”

But if the entire law were struck down, it would eliminate protections in the law that forbid insurance companies from denying insurance to people with pre-existing conditions.

Republicans facing tough races in 2020 dodged on whether they supported the Trump administration’s move.

“I do believe that the White House is in discussions with the majority here in the House, the Democrat majority, on prescription drug prices and some other things to lower that cost curve, so that's what I'm in favor of,” said Rep. Ann WagnerAnn Louise WagnerOn The Money: Tax, loan documents for Trump properties reportedly showed inconsistencies | Tensions flare as Dems hammer Trump consumer chief | Critics pounce as Facebook crypto project stumbles Tensions flare as Democrats urge consumer bureau to boost penalties Federal aid is reaching storm-damaged communities too late MORE (R-Mo.), whose district the Cook Political Report rates as “lean Republican” for 2020.

Sen. Thom TillisThomas (Thom) Roland TillisTillis says impeachment is 'a waste of resources' GOP requests update on criminal referrals prompted by 2018 Kavanaugh probe The Hill's Campaign Report: Warren, Sanders overtake Biden in third-quarter fundraising MORE (R-N.C.), who is up for reelection next year, said “every time we say [repeal] we have to have a replace” but also did not give a firm position on whether he supports or opposes the administration’s move.

Ford O’Connell, a GOP strategist, said that because most legal experts do not think the anti-ObamaCare lawsuit will ultimately succeed, the issue will eventually be moot. At the same time, he acknowledged the administration’s filing creates a positive story for Democrats.

“Internally in their mind they’re breathing a sigh of relief,” O’Connell said of Democrats who can now talk about health care instead of Mueller’s findings.

Sen. Susan CollinsSusan Margaret CollinsOvernight Energy: Perry to step down as Energy secretary | Future of big-game hunting council up in the air | Dems lose vote against EPA power plant rule Overnight Defense — Presented by Boeing — Pence says Turkey agrees to ceasefire | Senators vow to move forward with Turkey sanctions | Mulvaney walks back comments tying Ukraine aid to 2016 probe On The Money: Senate fails to override Trump veto over border emergency | Trump resort to host G-7 next year | Senators to push Turkey sanctions despite ceasefire | McConnell tees up funding votes MORE (R-Maine) was the rare Republican to directly say she was opposed to the administration’s move, calling it “very disappointing” and noting that the Department of Justice is supposed to defend “duly enacted laws, which the Affordable Care Act certainly was.”

The timing of the administration’s move seemed like incredible fortune for Democrats, many of whom were deflated by the Mueller news.

“At a time when all this Russia news came out and it’s not what voters are interested in, leave it to the Trump administration to turn it back to health care, which is why we’re in the majority,” said Rep. Scott PetersScott H. PetersHow to kickstart a rapid global warming slowdown Mass shootings have hit 158 House districts so far this year Overnight Energy: Lawmakers show irritation over withheld Interior documents | Republican offers bipartisan carbon tax bill | Scientists booted from EPA panel form new group MORE (D-Calif.).

Trump, during a private lunch at the Capitol on Tuesday with Senate Republicans, called for revisiting ObamaCare and coming up with something better, lawmakers said.

He did not offer details, other than saying that “whatever it is” should protect people with pre-existing conditions, Sen. Mike RoundsMarion (Mike) Michael RoundsAmerica's newest comedy troupe: House GOP 'Mike Pounce' trends on Twitter after Trump slip at GOP retreat Conservatives offer stark warning to Trump, GOP on background checks MORE (R-S.D.) said while leaving the lunch.

With Democrats in control of the House, however, the chances of Congress agreeing on bipartisan ObamaCare legislation are essentially zero.

“He just mentioned in passing that there was litigation moving through the courts, but litigation takes a while and he wanted to see us revisit the subject,” said Sen. John KennedyJohn Neely KennedyMORE (R-La.).

A lower court judge invalidated ObamaCare in December in response to the lawsuit, brought by 20 GOP-led states.

But that judge is known as a staunch conservative, and legal experts in both parties predict that the lawsuit will not ultimately succeed, either at the 5th Circuit Court of Appeals, where the case currently is, or at the Supreme Court.

The challengers argue that because Congress in 2017 repealed the financial penalty in the mandate for having coverage, the mandate can no longer be upheld as constitutional under Congress’s taxing power. They say that because the mandate should fall, the entire rest of the law should also be struck down.

Most legal experts say precedent shows that even if the mandate falls, there is no reason for courts to strike down the rest of the law, since Congress purposefully left the rest of ObamaCare in place while repealing the mandate penalty in the 2017 tax law.

Sen. John CornynJohn CornynTrump slams 'very dumb' O'Rourke for proposals on guns, tax exempt status for churches GOP cautions Graham against hauling Biden before Senate Succession at DHS up in the air as Trump set to nominate new head MORE (R-Texas) did not give a position on the case. “I support having the courts make the decision,” he said.

But he noted that the issue of health care is not going away.

“I expect we'll continue to have a conversation about health care into the indefinite future,” he said.