A new Reuters/Ipsos poll shows that nearly 60 percent of likely voters across the nation want the Affordable Care Act to remain in place.
On Friday, a federal judge fulfilled a wish conservatives have held for more than eight years by ruling the Affordable Care Act, also known as Obamacare, unconstitutional.
U.S. District Court Judge Reed O’Connor agreed with a group of 20 states with Republican governors or legislatures that argued the constitutionality of the law’s individual mandate dissolved when Congress removed the tax penalty for the uninsured.
In 2012, the Supreme Court upheld the law and its mandate requiring people purchase insurance on the grounds that it fell within Congress’ taxation power. O’Connor said when the tax penalty was removed so was the central argument upholding the 2010 law’s constitutionality. His ruling declared not only the individual mandate but the entire law unconstitutional.
That decision leaves Republican and Democratic lawmakers, as well as millions of Americans, wondering, “So, what happens now?”
For the immediate future, the answer is nothing. The ACA will remain in place while the law’s future is handled in the courts, a process could take months or years to resolve. People who bought coverage on the health care exchanges before Saturday’s deadline will be insured for 2019.
‘Republicans will never stop’: Obama slams GOP after ruling against Affordable Care Act
The legal battle
The Justice Department under President Donald Trump announced in June that it would not defend ACA’s individual mandate and other provisions, such as protections for people with pre-existing conditions, but asked that the law not be struck down in its entirety.
So, the Justice Department seems unlikely to appeal O’Connor’s ruling. But after the Trump administration dropped its defense of the ACA, a number of Democratic states, led by California, took it up. Those states intend to appeal Friday’s decision.
“The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court. Today’s misguided ruling will not deter us: our coalition will continue to fight in court for the health and well-being of all Americans,” California Attorney General Xavier Becerra said Friday in response to the ruling.
House Minority Leader Nancy Pelosi, D-Calif., has vowed that Democrats will intervene and direct House counsel to defend the ACA when they take control of the chamber next month.
The case would go the U.S. Court of Appeals for the 5th Circuit, which is dominated 11-5 by judges who were nominated by Republican presidents. Yale Law professor Abbe Gluck said the 5th Circuit will almost certainly grant a stay, keeping O’Connor’s ruling on hold pending their decision.
A three-judge panel for the 5th Circuit will then accept briefs and hear oral arguments in the case before giving their decision. From there, it’s possible the entire panel of 5th Circuit judges will ask to review the case.
“You’d be lucky if you had an opinion out of them before June,” Gluck said.
Whatever the 5th Circuit’s decision, one side or the other is almost certain to appeal. But Gluck said she believes the “current Supreme Court will not accept the case” if O’Connor’s decision is overturned because “the case is extremely weak on the law and I don’t think anyone on the court has the appetite for another politicized Obamacare showdown.”
If O’Connor’s ruling is upheld, on the other hand, the Supreme Court “will have to take the case.” Barring a rare special session to hear the case, Gluck said it is most likely the Court will hear arguments in the case in early October.
Gluck, who called the ruling “shocking” in a New York Times op-ed co-authored with Case Western Reserve University School of Law professor Johnathan Adler, expects the case will be overturned and never even make it the Supreme Court.
“This case turned on a very simple and established legal principle, which conservative and liberal judges alike apply,” she said. That principle, known as “severability” is that when a court rules part of a law unconstitutional, the rest of the law should stand “unless Congress clearly indicates otherwise.”
“Sometimes severability cases are difficult because it is hard to guess how much importance Congress attributed to one provision, especially in a lengthy law like the Affordable Care Act,” Gluck and Adler wrote in the Times. “But this is an easy case: It was Congress, not a court, that eliminated the mandate penalty and left the rest of the statute in place. How can a court conclude that Congress never intended the rest of the statute to exist without an operational mandate, when it was the 2017 Congress itself that decided it was fine to eliminate the penalty and leave the rest of the law intact?”
O’Connor said Republicans in Congress eliminated the tax penalty but left the rest of the law intact because they didn’t have the vote for a full repeal.
Gluck and Adler called that argument “ridiculous” and said Congress’ intent has to be determined by how it votes.
“Congress thinks the law works without an operational mandate. To believe otherwise is to assume Congress enacts unworkable laws and that is not what courts are allowed to presume,” they wrote.
The legal uncertainty around the law could have negative impacts on the health insurance markets, said UCLA Law professor Jill Horwitz.
“Insurance markets depend on stability,” said explained. “That kind of roiling of the waters leads to an uncertain legal landscape that insurance companies don’t like to operate in.”
The instability makes it difficult for insurance company executives to plan because they don’t know if the exchanges will continue to function or how many people are going to be eligible to shop in them, Horwitz said.
“The rates are set for next year, but I imagine that this kind of uncertainty only is going to lead to higher prices for the year after,” she said.
“And if it’s difficult for experts to follow all the twists and turns of the state of the ACA, imagine how hard it is for somebody who’s working a full-time job, trying to live their lives, not an expert in insurance markets, without the help of outreach because we’ve cut down on the funding for enrollment counselors,” Horwitz said. “Imagine how hard it is for those people just to find insurance.”
Even if O’Connor’s decision is reversed by the 5th Circuit or Supreme Court, Horwitz said markets could still see price increases for three reasons.
“One is the insurance companies just don’t like to live under that kind of uncertainty and so they’re going to price that uncertainty into their products,” she said.
The second risk is that consumers “are going to get the wrong message” and, without a major effort at outreach, fewer of them will go to the insurance marketplaces.
Third, it could mean that “instead of policy makers spending their time improving the health care system for the people who need it, they’re spending their time litigating this case.”
Search for a legislative solution
The solution offering the most stability and predictability for both insurance company and consumers would be a legislative one, Horwitz said.
“On the assumption that the Supreme Court upholds, we will get great, great health care for our people,” President Donald Trump told reporters Saturday. “We’ll have to sit down with the Democrats to do it, but I’m sure they want to do it also.”
Democrats will undoubtedly want to pass health care legislation, but getting them to agree with Trump and Senate Republicans on the specifics will be a challenge.
A call for “Medicaid for all” and to expand a public insurance option is popular among Democrats. Health insurance, and retaining coverage for people with pre-existing conditions, was a central campaign issue for Democrats who won a House majority in the midterm election.
And Democrats believe they have a political advantage in the debate. As the likely incoming Speaker Pelosi will be able to order the House counsel to intervene in the ACA without a vote. But she intends to bring one anyway to get Republicans on record, Politico reported. Schumer said Sunday he plans to push for a similar vote in the Senate, for similar reasons.
But those House Democrats will need the Republican-controlled Senate to go along with any measure to make it Trump’s desk in the next two years and “Medicaid for all” is unlikely to have the same appeal across the aisle.
Republicans have expressed more willingness to keep provisions of the Affordable Care Act in place since their failed efforts to “repeal and replace” the law and some have suggested a more step-by-step approach.
For example, keeping insurance for people with pre-existing conditions has been an area where Republicans and Democrats could work together. Other popular provisions such as parents being able to keep their children on their plan until age 26 could also possibly make it through as separate pieces of legislation.
Sen. Susan Collins, R-Maine, said Sunday that O’Connor’s ruling was “far too sweeping” and that she believes “it will be overturned.”
“There are many good provisions of the law. Those should be retained,” Collins said.
Law professor Gluck said she is glad Collins and other lawmakers recognize the weak legal standing of O’Connor’s ruling but fear it could lead to inaction.
“It’s good that there’s so much agreement among legal experts that the decision will likely be overturned, and I’m glad that message is getting out,” she said. “I think there’s a danger in that message becoming widespread to the extent that it makes the members of Congress and the White House feel that they can just sit back and do nothing.”
Contributing: Richard Wolf
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