A couple of months ago, Politico noted that the Affordable Care act “has never been stronger.” Despite Donald Trump’s efforts to sabotage the health care reform law, the assessment rang true.
Premiums have fallen, the market is stable, and congressional efforts to repeal the ACA are on indefinite hold so long as Democrats maintain their House majority. The only thing that could derail the nation’s health care system now would be intervention from conservative judges appointed by Republican presidents.
It was against this backdrop that two federal appellate judges – one nominated by Donald Trump, the other by George W. Bush – ruled that the ACA’s individual mandate is unconstitutional, though as NBC News’ report noted, they also “sent the case back to the trial judge for another look at whether the entire law is invalid or if some parts can survive.”
By a 2-1 vote, the 5th Circuit Court of Appeals in New Orleans agreed with Texas and 17 other red states that the key part of the law is unconstitutional – the provision that requires all Americans to buy insurance or pay a penalty on their income tax. The Supreme Court upheld the law in 2012, ruling that it was a legitimate exercise of Congress’s taxing authority.
The states then sued after the Republican-led U.S. House in 2017 set the tax penalty at zero. The appeals court agreed with a Texas trial judge who first heard the lawsuit. He ruled that because the tax was eliminated, the law could no longer be saved as a use of Congress’ taxing power…. Without the tax, it concluded, Congress has no authority to require Americans to buy health insurance.
The full 5th Circuit ruling is online here (pdf).
For those who may need a refresher on how we reached this point, let’s circle back to some of our earlier coverage. It has, after all, been almost exactly a year since U.S. District Judge Reed O’Connor – a Bush-appointed jurist in Texas – sided with a dubious Republican lawsuit and struck down the entirety of the Affordable Care Act, root and branch.
The hope among health care advocates was that the 5th Circuit would hear the appeal, overturn the nonsensical district court ruling, and the matter would be put to rest. That is now, however, what the Bush- and Trump-appointed judges decided.
Instead, they tasked O’Connor, the far-right judge whose ruling was widely panned, to reconsider the case now that they’ve rejected the ACA’s individual mandate. The point, evidently, will be for him to evaluate whether elements of the law can remain intact, or whether the entirety of the ACA system – every benefit, every protection, every safeguard, etc. – should be destroyed.
It’s a safe bet we know what O’Connor is going to say, because he already said it at this time last year.
At that point, the case will be appealed again, and many expect it to eventually reach the U.S. Supreme Court – which has already ruled in the ACA’s favor twice – for yet another test.
It’s worth noting for context that the last time the Supreme Court considered the legality of “Obamacare,” the reform law prevailed in a 6-3 ruling. Of the six justices in the majority – Roberts, Kennedy, Ginsburg, Breyer, Kagan, and Sotomayor – five are still on the nine-member bench. It’s why, when push comes to shove, most of the people involved in this fight believe common sense and a sensible approach to the law will ultimately prevail.
The trouble is, it’s likely to be a while before the case works its way back to the high court, and no one can say with any confidence what the makeup of the bench will look like when that happens.
In case the stakes for the 2020 presidential election didn’t seem high enough, this case serves as a reminder that the outcome of the race may very well dictate the health security of tens of millions of American families.
Postscript: The White House issued a statement yesterday afternoon – before Trump’s impeachment – celebrating the 5th Circuit’s ruling. What the statement neglected to mention is that the Trump administration, with its support for the case and the district court ruling, is trying to strip millions of families of their coverage, including the elimination of protections for Americans with pre-existing conditions.