wsj.com Affordable Care Act Faces Latest Test in Supreme Court
Jess Bravin and Stephanie Armour
WASHINGTON—A week after President Trump’s electoral defeat, the Supreme Court will hear arguments on one of the principal goals of his 2016 campaign—eliminating the Affordable Care Act—in the midst of an intensifying pandemic.
The president and Senate Republicans never found a path to repeal or replace the Obama-era health-care law. But by reducing to zero the penalty for failing to maintain health insurance, they effectively removed the piece they found most objectionable.
In Tuesday’s case, a Texas-led group of Republican-leaning states, backed by the Trump administration, contend that change made the entire health-care law unconstitutional. If a majority of justices agree, the result could be loss of health-care coverage for at least 20 million Americans.
A federal district judge in Fort Worth, Texas, ruled in favor of those challenging the law. Last year, a federal appeals court in New Orleans upheld most of that decision, but left open the more important question of “severability”: whether invalidating one portion of the law—the individual mandate—must bring the entire statute down with it.
A coalition of more liberal states, led by California, intervened to defend the ACA, backed by the Democratic-controlled House of Representatives.
President-elect Joe Biden ran on expanding the Affordable Care Act and has said he wants to resurrect the law’s penalty on people who go without coverage. That could make a decision to strike down the health law moot. Even under Texas’s legal theory, the law would become constitutional if Congress imposed a token penalty of $1 or declared it wasn’t mandatory to carry insurance.
Mr. Biden would have a little time to pursue such a legislative change because a high-court decision isn’t expected until the end of June. Even if Republicans continue to control the Senate, two of their number—Lisa Murkowski of Alaska and Susan Collins of Maine—opposed the ACA repeal efforts and are seen as reluctant to eliminate the law without a ready replacement, said Nicholas Bagley, a University of Michigan law professor.
The Affordable Care Act passed its most serious constitutional test in 2012. Along with four other conservatives, Chief Justice John Roberts found that Congress’s authority to regulate commerce didn’t include requiring individuals to purchase health insurance. But he joined four liberal justices in accepting the Obama administration’s backup argument—that Congress could penalize individuals who failed to carry insurance by imposing a tax on them.
Texas argues that because the 2017 tax bill set the penalty at zero, meaning it no longer produces revenue, it cannot be a tax.
Congress “removed the textual hook that allowed this Court to construe the mandate as a tax,” the Texas brief says, and apart from its taxing authority, Congress has no other means to direct individuals to carry insurance.
That makes the individual mandate unconstitutional, Texas argues, and without the individual mandate, there can be no Affordable Care Act. Texas cites statements from Obamacare backers that the other provisions intended to create near-universal coverage weren’t economically feasible unless nearly everyone bought insurance.
“Six different times the ACA’s text says the individual mandate must work ‘together with the other provisions of this Act’ as an integrated whole to accomplish Congress’s goals,” Texas observes. California argues that the case should be dismissed outright, because none of the plaintiffs has been harmed by the lack of penalty and thus lack standing. In any case, though, California contends they are wrong on all counts, arguing among other things that the mandate should be viewed as “a suspended exercise of the taxing power” because the 2017 Congress left its successors flexibility to reinstate the penalty.
If the court holds that the mandate is unconstitutional as long as there is no penalty for disregarding it, California says the rest of the ACA should remain intact because Congress rejected efforts to repeal the law.
“It is abundantly clear that Congress wanted to keep the hundreds of other ACA provisions that are within its power without an enforceable minimum coverage provision,” California argues.
By 2017, lawmakers knew “that almost 12 million Americans were receiving healthcare coverage through the ACA’s expansion of Medicaid and another eight million were using ACA-funded tax credits to purchase insurance through the Act’s Exchanges,” the brief says, along with “directing billions of dollars to state and local governments, which used the funds to expand access to healthcare and fight emerging public health threats.”
Although the GOP has long opposed Obamacare, the Texas suit, arriving as the nation reels from the coronavirus pandemic, has garnered minimal support from congressional Republicans. Senate Majority Leader Mitch McConnell of Kentucky, the nation’s highest-ranking Republican after outgoing President Trump, hasn’t openly championed the ACA lawsuit, saying last month that “no one believes the Supreme Court is going to strike down the Affordable Care Act.”
Millions of people have lost their jobs during the pandemic, and with them their work-provided health insurance. Elimination of the ACA would inflict a shock on the health-care system, analysts say. Most states with budgets already strapped by the pandemic would be unable to cover the shortfall if federal funding for Medicaid expansion ends.
Moreover, the law is now firmly entrenched in the U.S. health system. The ACA ensures coverage of preventive care, including a possible Covid-19 vaccine, without cost sharing in Medicare, Medicaid and private insurance.
The ACA also has spurred federal programs that pay doctors and hospitals for patient outcomes rather than giving them a fee for each service; guaranteed coverage for people with pre-existing health conditions; and put limits on out-of-pocket costs for care. The Trump administration also leaned on the ACA for part of its legal argument requiring hospitals to disclose their negotiated rates with insurers.
Write to Jess Bravin at jess.bravin@wsj.com and Stephanie Armour at stephanie.armour@wsj.com
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