Rally to Save the ACA,” Molly Adams

December 19, 2019; New York Times and Washington Post

On Wednesday, an appeals court of the 5th circuit in New Orleans struck down a key component of the Affordable Care Act (ACA): the individual mandate that everyone must have insurance. Though the court did not declare the entire law unconstitutional, this decision does put the issue into limbo, sending the case back to a Texas judge to have him determine which components of the law can stand without the individual mandate and which cannot.

Does this sound complicated? With a bit of unraveling, it’s more easily understood, and one can see the role of the federal judiciary as “traffic cop” for Obamacare.

This suit was filed in February 2018 by Texas Attorney General Ken Paxon, joined by 17 other Republican attorneys general who sought to have the ACA declared unconstitutional. When Congress adopted the 2017 tax bill, which takes effect this year, it reduced the penalty for people who don’t buy health insurance to zero. The suit contends that though the ACA was legal in 2012 under Congress’s taxing powers, now it no longer is.

The three-member appeals panel (two Republicans and one Democrats) unsurprisingly ruled 2-to-1 in this case, declaring the individual mandate unconstitutional. But it also found that the issue of “severability” needed to be dealt with:

A longstanding legal doctrine called “severability” holds that when a court excises one provision of a statute, it should leave the rest of the law in place unless Congress explicitly stated that the statute could not survive without that provision. But legal experts on both sides of previous ACA battles said that Judge [Reed] O’Connor’s reasoning was badly flawed in striking down the entire health care law based on how the penalty provision became moot by the 2017 tax legislation.

If the individual mandate is ruled unconstitutional, does that make the other parts of this complicated law—including protections for people with pre-existing medical conditions and subsidies to help people afford coverage—invalid, too?

Judge Reed O’Connor of the federal district court in Texas struck down the ACA in its entirety in December 2018. This act led to this appeal of the mandate; now, Judge O’Connor finds himself back in the middle. He’ll determine which provisions of the ACA can stand without the individual mandate and which cannot. That task will take a good amount of time, and will delay any appeal to the Supreme Court until well after the 2020 election. That’s certainly better news for the Republicans than for the liberals and other Obamacare supporters, but it all leaves the common person adrift.

The Justice Department has quietly suggested that Texas and the other 17 Republican-led states declare the law unconstitutional in their states based on this ruling. While this is unlikely to happen, one never knows when it comes to complicated issues like healthcare. But the statistics that should be on everyone’s minds are these: according to the Times, “Some 17 million Americans could lose the coverage gained through the Affordable Care Act if the law were thrown out, more than 50 million people with pre-existing medical conditions could again be denied health insurance and insurers would no longer have to cover people up to age 26 under their parents’ plans.”—Carole Levine