by Paige Minemyer | Dec 18, 2019 5:06pm
In a
blow to the ACA, federal appeals judges have ruled 2-1 that the landmark
healthcare law's individual mandate is unconstitutional but punted on the
question of whether that mandate can be excised from the remainder of the law.
The
Fifth Circuit Court of Appeals issued its long-awaited ruling Wednesday evening
and chose to remand the question of "severability" which is central
to the case back to the District Court for further consideration.
The
judges did, however, ding the mandate itself.
"The
individual mandate is unconstitutional because it can no longer be read as a
tax, and there is no other constitutional provision that justifies this
exercise of congressional power," they wrote in their opinion (PDF).
Congress
invalidated the individual mandate as part of tax reform legislation passed in
2017, thus knocking out a key leg in the three-legged stool of the Affordable
Care Act.
A group
of red states then sued to eliminate the law in full, and a Texas judge
ruled in December that eliminating the individual mandate penalty invalidated
the Obama administration's signature healthcare legislation in its entirety.
The
Trump administration initially elected to avoid defending the ACA in court but
did not step into the fray to negate it, either. However, they changed their
stance earlier this year, with the Department of Justice saying it backs the Texas decision to strike down the law.
The
court requests that Judge Reed O'Connor, who initially invalidated the
law, analyze more in-depth which parts of the ACA would be potentially
inseverable from the mandate, and to examine the Department of Justice request
that parts of the law that do not harm the states challenging it to stay in
place.
Nicholas
Bagley, a law professor at the University of Michigan and an expert on the case
who supports the ACA, said in a Twitter thread that position likely spells doom
for major portions of the law.
The
ruling was not unanimous, however. In a dissent, Fifth Circuit Judge Carolyn
King wrote that she believes the mandate is constitutional, though rendered
unenforceable by Congress, and would be severable from the ACA.
She
noted that Congress took only the step to invalidate the penalty, but kept the
remainder of the law intact, which would indicate that legislators believe that
the mandate can be cut away from the rest of the ACA.
"The
district court’s opinion is textbook judicial overreach," King wrote.
"The majority perpetuates that overreach and, in remanding, ensures that
no end for this litigation is in sight."
California
Attorney General Xavier Becerra, who has been leading the blue states fighting
the lawsuit, already signaled an appeal, potentially to the Supreme Court.
"California
will move swiftly to challenge this decision, because this could mean the
difference between life and death for so many Americans and their families,"
he said in a statement.
Legal
experts have predicted that the Supreme Court will be tasked with the final
word on the case, and getting to that point could take a substantial amount of
time.
Meanwhile,
healthcare industry groups blasted the decision that continues to leave the
fate of the ACA in the balance.
"Without
question, this decision stretches out the timeline on the final fate of
pre-existing conditions and other important protections in the ACA," said
Chip Kahn, president and CEO of the Federation of American Hospitals, in a
statement.
AHA
President Rick Pollack called the ruling "wrong-headed" in a
statement.
"America’s
hospitals and health systems are disappointed that the court has declined to
rule on which parts of the ACA can remain," Pollack
said. "Sending the decision back to the federal district court that
invalidated the entire law puts health coverage – and peace of mind – for
millions of Americans at risk."
The
Blue Cross Blue Shield Association found a silver lining in the ruling. .
"It’s
noteworthy that the court recognized the gravity of a challenge to the entire
law and did not immediately rule to invalidate it," said association
president and CEO Scott Serota, in a statement. "We believe that to
do so would have severe consequences for Americans’ coverage and access to the
care they need."
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