Supreme Court to Hear ACA Appeal in 2020

by Peter Johnson

On March 2, the Supreme Court agreed to hear Texas v. United States, the latest lawsuit intended to overturn the Affordable Care Act (ACA). Though health insurance trade groups indicated they are anxious for a resolution in the case, health care law experts tell AIS Health that the survival of the ACA is far from certain.

The case has a circular premise at its core, drawn around the ACA's individual mandate, which levies a tax penalty on non-exempt people who don't sign up for health insurance. In 2017, Republican congressional majorities lowered the penalty for uninsured adults to $0 starting in 2019, effectively ending the mandate. The Republican state attorneys general who filed Texas v. United States in February 2018 argue that zeroing out the mandate makes the entire law unconstitutional.

This argument depends on a precedent set by another Supreme Court case that challenged the ACA, National Federation of Independent Business (NFIB) v. Sebelius, which determined that the individual mandate is constitutional — but only through Congress' taxing authority. According to the Texas argument, because the individual mandate is a central component of the ACA, the rest of the law became unconstitutional when Congress zeroed out the tax.

Katie Keith, a lawyer and research professor at Georgetown University's Center on Health Insurance Reforms, says there's a decent possibility that a majority of justices could find that argument persuasive, even though the same justices who preserved the individual mandate are all still on the court. Chief Justice John Roberts, who authored the NFIB v. Sebelius decision, can't be expected to do so again now that the penalty has been zeroed out.

Should Roberts or another justice agree with the zeroing-out argument, the fate of the larger ACA would depend on whether justices think the constitutionality of the individual mandate can be separated from the constitutionality of the rest of the law.

The plaintiffs in Texas v. United States argue that the rest of the law is not severable, but that idea has raised eyebrows across the legal community. In an amicus brief regarding Texas, four prominent health care law professors argue that "under established doctrine[,] the mandate is severable from the rest of the ACA."

However, if the court does follow established severability precedent, other important ACA policies could once again become an open question.

From Health Plan Weekly