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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) MuellerWhy a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel CNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump 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 McCarthyDemocratic fury with GOP explodes in House Trump to attack Biden in CPAC speech McConnell knocks Pelosi Jan. 6 commission proposal: 'Partisan by design' 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 McConnellKlain on Manchin's objection to Neera Tanden: He 'doesn't answer to us at the White House' Democratic fury with GOP explodes in House Murkowski undecided on Tanden as nomination in limbo 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 HarrisEmhoff reflects on interracial marriage case: Without this 'I would not be married to Kamala Harris' WHO: Coronavirus deaths down 20 percent worldwide last week Collins: Biden's .9T coronavirus package won't get any Senate GOP votes MORE (D-Calif.) wrote on Twitter.

Senate Democratic Leader Charles SchumerChuck SchumerHillicon Valley: Biden signs order on chips | Hearing on media misinformation | Facebook's deal with Australia | CIA nominee on SolarWinds House Rules release new text of COVID-19 relief bill Budowsky: Cruz goes to Cancun, AOC goes to Texas 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 WagnerSix ways to visualize a divided America House panel spars over GameStop frenzy, trading apps Republicans rally to keep Cheney in power MORE (R-Mo.), whose district the Cook Political Report rates as “lean Republican” for 2020.

Sen. Thom TillisThomas (Thom) Roland TillisMcConnell backs Garland for attorney general GOP senators demand probe into Cuomo's handling of nursing home deaths CNN anchor confronts GOP chairman over senator's vote to convict Trump 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 CollinsKlain on Manchin's objection to Neera Tanden: He 'doesn't answer to us at the White House' Overnight Health Care: Johnson & Johnson vaccine safe, effective in FDA analysis | 3-4 million doses coming next week | White House to send out 25 million masks Biden's picks face peril in 50-50 Senate 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. PetersOnly fast action can curb planetary heating in time California was key factor in House GOP's 2020 success Trump's illness sparks new urgency for COVID-19 deal 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 RoundsMike RoundsPowell pushes back on GOP inflation fears Overnight Health Care: US surpasses half a million COVID deaths | House panel advances Biden's .9T COVID-19 aid bill | Johnson & Johnson ready to provide doses for 20M Americans by end of March 11 GOP senators slam Biden pick for health secretary: 'No meaningful experience' 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 CornynPassage of the John Lewis Voting Rights Advancement Act is the first step to heal our democracy Biden signs supply chain order after 'positive' meeting with lawmakers Democrats look to improve outreach to Asian and Latino communities 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.