How a conservative Supreme Court could save the ACA

https://www.axios.com/supreme-court-amy-coney-barrett-health-care-3d67ac28-0be7-424e-b687-253fe0356e4c.html

How a conservative Supreme Court could save the ACA - Axios

Even a solidly conservative Supreme Court could find a pretty easy path to preserve most of the Affordable Care Act — if it wants to.

The big picture: It’s too early to make any predictions about what the court will do, and no ACA lawsuit is ever entirely about the law. They have all been colored by the bitter political battles surrounding the ACA.

  • Even so, a handful of factors — the specifics of this case, the court’s recent precedents, even a few threads from Amy Coney Barrett’s Supreme Court confirmation hearings — can at least help draw a roadmap for a conservative ruling that would leave most of the ACA intact.

How it works: There are two steps to the current ACA case. First, the justices will have to decide whether the law’s individual mandate has become unconstitutional. If it has, they’ll then have to decide how many other provisions have to fall along with it.

  • The real action is in the second step — whether the mandate is “severable” from the rest of the law.

“If you picture severability being like a Jenga game — it’s kind of, if you pull one out, can you pull it out while it all stands? Or if you pull two out, will it still stand?” Barrett explained during Wednesday’s questioning.

  • “The presumption is always in favor of severability,” she said.

Severability is a question of congressional intent — whether Congress still would have passed the rest of a law if it knew it couldn’t have the piece the courts are striking down. And conservative judges make a point of relying only on a law’s text when determining congressional intent.

  • That should make the current case easy, the blue states defending the ACA argue: Congress zeroed out the mandate and left the rest of the law intact — a pretty clear sign that it intended for the rest of the law to operate in the absence of the mandate.
  • “It is abundantly clear that Congress wanted to keep the hundreds of other ACA provisions … without an enforceable minimum coverage provision, because that is the scheme Congress created,” Democratic attorneys general said in a brief.

The other side: The red states challenging the law, on the other hand, get further away from straight textualism.

  • They say the courts should instead look to Congress’ initial belief, when it passed the ACA in 2010, that the mandate was inextricably tied to protections for pre-existing conditions.

What we’re watching: Barrett acknowledged in this week’s hearings that the law has changed since it was first passed — a potentially encouraging sign, if you’re an ACA defender hoping the conservative justices will look at legislative text Congress wrote in 2017 instead of expert statements from 2010.

  • “Congress has amended the statute since” the 2012 Supreme Court ruling upholding the ACA, Barrett said Wednesday. “It has zeroed out the mandate, so now California v. Texas involves a different provision.

A case from earlier this year — tied to another big-ticket Obama policy — might also help illuminate the current court’s approach to severability.

  • The court’s conservative majority ruled in June that the leadership structure of the Consumer Financial Protection Bureau was unconstitutional.
  • But a combination of four liberals and three conservatives then held that the whole agency didn’t have to be struck down because of it.

Yes, but: None of this means that the threat to the entire ACA, or to its protections for people with pre-existing conditions, has been exaggerated.

  • The Republican attorneys general who brought the case are asking the court to invalidate the entire statute. So is the Justice Department.
  • A federal judge ruled that the entire law had to fall. An appeals court couldn’t decide how much to strike, but said it would probably need to be more than just the mandate — and protections for pre-existing conditions would be next in line.

The bottom line: The ACA’s allies may not be able to save the remains of the individual mandate, but that’s a loss they can live with. And there is at least a clear path to a ruling, even from a conservative court, that would leave the rest of the law intact.

Key conservative justices express openness to preserving ObamaCare’s protections

https://thehill.com/policy/healthcare/525293-key-conservative-justices-express-openness-to-preserving-obamacares

Key conservative justices express openness to preserving ObamaCare's  protections | TheHill

Two conservative justices on the Supreme Court appeared prepared to preserve at least some of the major components of ObamaCare, including its protections for people with preexisting conditions, as they heard arguments Tuesday in a suit challenging the law.

Chief Justice John Roberts and Justice Brett Kavanaugh seemed to express the view that if the court were to strike down the provision of the law mandating the purchase of health insurance, the rest of the law should be allowed to survive.

“Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place, the provisions regarding preexisting conditions and the rest,” Kavanaugh said.

ACA heads to Supreme Court Nov. 10: 5 things to know

https://www.beckershospitalreview.com/hospital-management-administration/aca-heads-to-supreme-court-nov-10-5-things-to-know.html?utm_medium=email

What to know as ACA heads to Supreme Court — again | National |  insightnews.com

The U.S. Supreme Court is set to hear a case questioning the legality of the ACA on Nov. 10.

Five things to know:

1. At the center of the case is whether the health law should be struck down. In a brief filed June 25 in Texas v. United States, the Trump administration argues the entire ACA is invalid because in December 2017, Congress eliminated the ACA’s tax penalty for failing to purchase health insurance. The administration argues the individual mandate is inseverable from the rest of the law and became unconstitutional when the tax penalty was eliminated; therefore, the entire health law should be struck down.

2. The administration’s brief was filed in support of a group of Republican-led states seeking to undo the ACA. Meanwhile, California Attorney General Xavier Becerra is leading a coalition of more Democratic states to defend the ACA before the Supreme Court. 

3. The case goes before the Supreme Court days after media outlets projected Joe Biden as the next president of the U.S. President-elect Biden has said he seeks to expand government-subsidized insurance coverage and wants to the bring back the ACA’s tax penalty for failing to purchase health insurance, according to The Wall Street Journal. If a change regarding the tax penalty did occur, the publication notes that Republicans’ argument on severability would no longer apply.

4. The case also goes before the Supreme Court about two weeks after the Senate voted Oct. 26 to confirm Amy Coney Barrett to the Supreme Court. Ms. Barrett previously criticized Chief Justice John Roberts’ 2012 opinion sustaining the law’s individual mandate, The New York Times reported, but she said during her confirmation hearings in October that “the issue in the case is this doctrine of severability, and that’s not something that I have ever talked about with respect to the Affordable Care Act.”

5. According to the Journal, the Supreme Court is not expected to make a decision in the case until the end of June.

TrumpCare Versus BidenCare: A Potential Shift For 45 Million Americans

https://mailchi.mp/burroughshealthcare/april-16-3240709?e=7d3f834d2f

Healthcare policy is a defining issue for America | Financial Times

Less than three months from now, either Donald Trump will begin his second term as President, or Joe Biden will begin his first. What the U.S. healthcare system on that date and moving forward could be starkly different depending on who is sworn in.
 
The policy differences between the two men are essentially on opposite poles. If fully enacted, Trump’s policies could potentially cause tens of millions of Americans to lose their healthcare coverage. Biden’s policies would likely provide healthcare access to tens of millions more Americans compared to today.
 
In November, the U.S. Supreme Court will hear arguments in a case called California v. Texas. It stems from the 2017 tax bill that zeroed out the penalty individuals paid if they did not obtain health insurance. The argument put forth by the 20 Republican state attorney generals in that case is if the individual mandate no longer has taxing power, the entire law should be declared unconstitutional based upon a lack of severability of the entire law.
 
Many legal scholars have noted that this case is premised on a shaky argument. But with a 6-3 majority of conservative justices now on the high court, many bets are off as to the ACA’s survival. And President Trump just said in an interview with “60 Minutes” he fervently hoped the ACA is eliminated. He put forth no alternatives to the ACA in that interview.
 
Should the ACA be declared unconstitutional, health insurance for some 23 million people would be imperiled. That includes some 12 million Americans who are eligible for Medicaid under the ACA’s expanded income guidelines, and another 11 million who purchase insurance on the state and federal health insurance exchanges – roughly 85% of whom receive premium subsidies that make it more affordable. Moreover, another 14 million Americans who are estimated to have lost their employer-based health plans during the COVID-19 pandemic may not have another place to turn for coverage.
 
Before the ACA case, the Trump administration also promoted so-called “off-exchange” health plans, and health sharing ministries. The first is often a form of short-term health insurance, the second operates as a cooperative serving those of the same religious stripe. Both offer health coverage that is potentially cheaper that what is offered on the exchanges, but both also tend to cap it at low dollar levels. Many also bar applicants for a variety of claims, such as for maternity or cancer care, or if they have pre-existing medical conditions – practices prohibited for ACA plans.
 
Should Trump be re-elected and the ACA survives constitutional muster, expect to see many states apply for more waivers from that law. Georgia just received approval to modestly expand Medicaid eligibility, primarily for those poor already working 80 hours or more a month. The state is also on the cusp of being able to opt out of the healthcare.gov exchange entirely and have consumers work directly with insurance brokers to purchase coverage. However, there is nothing in the pending waiver to prevent those brokers from offering stripped-down coverage without the ACA protections that the Trump administration is already promoting.
There could also be more block grants to states for their Medicaid budgets, which most experts have concluded would reduce the number of enrollees in that program.
 
If Biden is elected and both incoming houses of Congress are also Democratic, the entire Supreme Court case can be mooted simply by reattaching a financial penalty to the individual mandate. That hasn’t been mentioned at all during the campaign, presumably because Biden does not want to discuss what would essentially be a promise to raise taxes. But it is the most direct way to skirt the risk of an adverse Supreme Court decision.
 
Biden’s campaign has also put forth numerous proposals to enlarge the ACA and the Medicare program. They include expanded premium subsidies for individuals and families to purchase coverage, and a public health plan option – which would allow those who live in the states that have yet to expand Medicaid to obtain coverage. Biden has also proposed a buy-in to Medicare at age 60.
 
The estimates are that an expanded ACA and other Biden plans could net another 20 to 25 million Americans healthcare coverage. That would leave fewer than 10 million – 2% to 3% of the population – without access to coverage. It would probably be as close to universal healthcare as the United States could get given its current political realities.
 

The two different approaches will either lead to a country where virtually everyone has access to healthcare coverage and services, or one where 50 million or more people could potentially be uninsured. It’s a shift that could impact a minimum of 45 million people – and that’s not even counting those who lost their coverage during the current public health crisis. 
 
Elections have consequences. Less than three months from now, this one will determine whether the U.S. healthcare system will take one consequential path over another.

‘People should worry:’ ACA in limbo after Bader Ginsburg’s passing

https://www.healthcaredive.com/news/people-should-worry-aca-in-limbo-after-bader-ginsburgs-passing/585545/?utm_source=Sailthru&utm_medium=email&utm_campaign=Issue:%202020-09-22%20Healthcare%20Dive%20%5Bissue:29794%5D&utm_term=Healthcare%20Dive

In less than two months, the Supreme Court is set to hear the case that could overturn the Affordable Care Act — without Ruth Bader Ginsburg on the bench, fanning anxieties the landmark law is in greater jeopardy due to her passing. 

“People should worry,” Nicholas Bagley, a health law expert and professor at the University of Michigan, said.

The death of the liberal justice on Friday at the age of 87 means that of the nine justices, there are now only three appointed by Democratic presidents instead of four.

Assuming the liberal wing was set to uphold the ACA, with Bader Ginsburg they would have only needed to pick up one more conservative justice to vote in favor of preserving the law. Chief Justice John Roberts has been a swing vote in several cases involving the law. Roberts’ 2012 vote saved the law from a fatal blow in a 5-4 decision when he deemed the individual mandate could be considered a tax. 

Without Bader Ginsburg, they’ll now need to sway two — raising concerns about whether that’s possible. 

“This opens it wide up and I really do think the law could be at risk,” Katie Keith, another legal expert who has followed the case closely, agreed.

The landmark but politically polarizing legislation ushered in health coverage gains and basic protections for millions under President Barack Obama (who appointed two of the three remaining liberal justices). The law’s latest time at the Supreme Court comes after a group of red states argued the law was moot after Republicans zeroed out a key part of it — a tax penalty for those that did not get insured as was required in the law.

However, a split decision may be welcome by ACA proponents.

If the the liberal wing is only able to sway one conservative justice, resulting in a 4-4 split case, it will buy more time for the law and its defenders, a set of blue states lead by California’s Attorney General Xavier Becerra. 

In that instance, the case would be punted all the way back down to Judge Reed O’Connor. The Fifth Circuit, which oversaw the appeal following a decision by O’Connor, ruled the individual mandate was unconstitutional but did not weigh in on whether the rest of the ACA could stand without the mandate. It sent that question back to O’Connor, and that’s where the case would land again, before O’Connor, in the event the Supreme Court punts.

That outcome buys more time, plus another opportunity to appeal and for the case to again work its way back before the Supreme Court.

But one legal expert said based on cases from this past term there is reason to be hopeful that two conservative justices could be swayed to leave the remainder of the ACA intact even if the mandate is ruled unconstitutional.

Legal experts point to cases from the most recent term in which Brett Kavanaugh and Roberts — both appointed by Republicans — weighed in on severability in a way viewed as favorable for the outcome of the ACA case. 

“I’m pretty hopeful,” Tim Jost, emeritus professor at Washington and Lee University School of Law, said.

Severability is an important question in the challenge to the ACA. The crux of the lawsuit centers on the argument that the individual mandate is so essential and intertwined into the fabric of the ACA that if the mandate is deemed unconstitutional than the entirety of the ACA must fall.

In their legal challenge, the red states and two individual plaintiffs argued that the individual mandate cannot be severed from the rest of the law, so the entire law should be overturned. That’s why ACA case watchers have tried to read the tea leaves by reviewing how justices have weighed in on severability in earlier cases.

Kavanaugh seemed emphatic about his belief that unconstitutional pieces of a larger law should not spell the demise for the entire law.

In a case decided this summer, political organizations were seeking to make robocalls to cell phones. However, a law, barred robocalls to Americans’ cellphones but was later amended by Congress to include an exception for the collection of debt. The plaintiffs argued this was a violation of the First Amendment, favoring debt-collection speech over political speech. The plaintiffs wanted the entirety of the robocall law overturned, not just the exception allowing robocalls for debt collection.

Kavanaugh wrote the 6-3 opinion, finding the exception for debt-collection unconstitutional, but ruling that the remainder of the law can stand. 

In his opinion, Kavanaugh wrote that the court’s preference has been to “salvage rather than destroy” the rest of the law in the event a part is deemed unconstitutional.

“The Court’s precedents reflect a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause,” Kavanaugh wrote in his opinion in the case, Barr v. Association of Political Consultants.

And Roberts showed similar favor for surgically precise decisions when it comes to severability.  “We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer,” he wrote in a separate 5-4 decision from this latest term regarding a challenge to the Consumer Financial Protection Bureau.

 

 

 

 

Barr urges Trump administration to back off call to fully strike down Obamacare

https://www.cnn.com/2020/05/05/politics/william-barr-obamacare-supreme-court/index.html?fbclid=IwAR0H0M_pTi9V9W4iEAqWTWKJzopzznh6202z0FgsMbthJS7oS-pDowVGc3M

Barr urges Trump administration to back off call to fully strike ...

Attorney General William Barr made a last-minute push Monday to persuade the administration to modify its position in the Obamacare dispute that will be heard at the Supreme Court this fall, arguing that the administration should pull back from its insistence that the entire law be struck down.

With a Wednesday deadline to make any alterations to its argument looming, Barr made his case in a room with Vice President Mike Pence, White House counsel Pat Cipollone, members of the Domestic Policy Council, press secretary Kayleigh McEnany and several other officials. The meeting ended without a decision and it was not immediately not clear if any shift in the Trump administration’s position will emerge.
Barr and other top advisers have argued against the hard-line position for some time, warning it could have major political implications if the comprehensive health care law appears in jeopardy as voters head to the polls in November.
According to four sources familiar with the meeting, Barr argued for modifying the administration’s current stance to preserve parts of the law, rather than fully back the lawsuit filed by a group of Republican states. As it stands now, the Trump administration’s position seeks to invalidate the entire Affordable Care Act, signed by President Barack Obama in 2010 and commonly known as Obamacare.
Barr and Health and Human Services Secretary Alex Azar have argued against supporting invalidating the law in full, engaging in a heated debate on this point with then-acting White House chief of staff Mick Mulvaney and policy officials allied with him, CNN reported last year. But Barr and others have recently brought an additional dimension to their efforts, highlighting the coronavirus pandemic that has swept the nation. If the justices were to accept the Trump administration position, its decision could cause substantial disruptions to the health care of millions of Americans and cause the uninsured rate to spike.
The Affordable Care Act is expected to serve as an important safety net for the millions of people who lose their jobs and work-based health insurance amid the pandemic. If the unemployment rate hits 15%, nearly 17.7 million Americans could lose their employer-sponsored policies, according to a recent Urban Institute report. More than 8 million people could enroll in Medicaid, particularly in states that expanded the program to more low-income adults under the sweeping health care law. Also, more than 4 million people could obtain coverage through the Affordable Care Act exchanges or other private policies, leaving just over 5 million uninsured, the report found.
Even before the pandemic, more than 11.4 million people signed up for Obamacare coverage for 2020 and roughly 12.5 million were enrolled in Medicaid expansion.
Trump’s domestic policy aides have resisted any change in the Trump administration’s legal arguments at this point, contending that the legal position should move forward without changes because Republicans have campaigned on repealing Obamacare for a decade. Those aides have brushed off the possibility of any new political repercussions, and pushed back on Barr in the meeting Monday.
The Justice Department declined to comment.
The divide has been a long-running battle inside the administration, but it has a new sense of urgency because the administration is up against a deadline on Wednesday if it wants to modify its argument.
The administration currently contends that the individual insurance requirement is unconstitutional, and because that mandate is tied to other provisions of the law, the entire Affordable Care Act must fall. If the administration is going to back off that absolute position, it would likely submit a filing to the Supreme Court within the next 48 hours, based on the court’s current briefing schedule for the dueling parties. Otherwise, the administration’s brief would not be due to the high court until June.
Barr has long favored tempering the administration’s position, which has shifted multiple times since the lawsuit began in early 2018. The administration argued that only two key provisions that protect Americans with pre-existing conditions should fall, but the rest of the law could remain. In a dramatic reversal soon after Barr became attorney general in early 2019, the Justice Department said the entire Affordable Care Act should be invalidated. Several months later, the administration argued before a federal appeals court that the law should only be struck as it applies to the coalition of Republican-led states that brought the challenge.
The argument that the entire law should be struck down already might have been a tough one to make to a Supreme Court majority that has twice rejected broad-scale challenges.
After a decade, the Affordable Care Act has affected nearly every aspect of the health care system. It required all Americans obtain coverage and created a marketplace for purchasing insurance. It also expanded Medicaid for poor people and protected diabetics, cancer patients and other individuals with pre-existing conditions from being denied coverage or charged higher premiums.
The current Supreme Court dispute began when Texas and other Republican-led states sued after the Republican-led Congress in 2017 cut the tax penalty for those who failed to obtain insurance to zero. Because the individual mandate is no longer tied to a specific tax penalty, the states argue, it is unconstitutional. They also say that because the individual mandate is intertwined with a multitude of ACA provisions, invalidating it should bring down the entire law, including protections for people with preexisting conditions.
On the other side are California and other Democratic-led states and the now Democratic-controlled US House of Representatives. The Affordable Care Act has remained in effect through the litigation.
The Supreme Court agreed earlier this year to take up the ACA dispute. The case is likely to be heard in the fall, but a decision would not be expected until 2021, after the November presidential election.
The case will mark the third time that the Supreme Court takes up a major ACA dispute. In 2012, the justices upheld the law, by a 5-4 vote, with Chief Justice John Roberts casting the deciding vote with the four liberal justices over the dissent of four conservatives. Roberts grounded his opinion in Congress’ taxing power.

 

 

 

The Supreme Court isn’t done with the ACA case yet. Here are the next steps.

https://www.healthcaredive.com/news/the-supreme-court-isnt-done-with-the-aca-case-yet-here-are-the-next-steps/570816/

The U.S. Supreme Court is scheduled to review the legal challenge to the Affordable Care Act on Feb. 21 to potentially weigh whether to take the case. However, legal expert Katie Keith from Georgetown University cautioned Healthcare Dive it’s common for the court to reschedule or relist cases for a later conference date.

Tuesday’s one-sentence order from the U.S. Supreme Court denying a request to fast-track the challenge to the Affordable Care Act is not the final word from the high court.

The justices will now decide whether to take up the legal case threatening to overturn the landmark law during their next term, which begins in October.

Essentially, the order returns the case to the typical review process as a group of blue states, led by California’s Democratic Attorney General Xavier Becerra, try to convince the Supreme Court it should hear the case at some point instead of letting it wind its way back through the lower courts.

“The court did not say we’re not reviewing this case at all,” MaryBeth Musumeci, an associate director at Kaiser Family Foundation and graduate of Harvard Law School, told Healthcare Dive.

The blue states sought to expedite the case, which would have resulted in a ruling before the presidential election in November. Some Democrats hoped that would pressure Republicans to come up with a replacement had the law been tossed, or more publicly defend efforts that would kill popular provisions like protections for pre-existing conditions.

The court refused to accelerate its review despite requests from hospitals, insurers, advocacy groups including AARP and a group of bipartisan economic scholars.

“It’s disappointing but it’s not altogether unsurprising. They typically don’t like to grant expedited review,” Katie Keith, a lawyer and health policy expert at Georgetown University​, told Healthcare Dive.

Other legal experts warned against reading too much into Tuesday’s order and what it may mean for the case going forward.

“Expediting was always unlikely. It’s a big ask for little purpose here. I wouldn’t read anything else into it,” Jonathan Adler, a law professor at Case Western Reserve University, told Healthcare Dive​.

Careful observers of the case should expect the justices to vote on whether to take it up by June at the latest, Keith said.

In the meantime, Tuesday’s order sets off another wave of briefs. First, the red states will try to convince the court of its position on whether the legal challenge should be heard in October. Expect that motion in the first few days of February, experts told Healthcare Dive.

Robert Henneke, the lawyer representing the individual plaintiffs, told Healthcare Dive his team will argue that the case is still premature for Supreme Court review. “The opinion from the Fifth Circuit was not a complete opinion,” Henneke said.

The appeals court in part affirmed a lower court’s decision, ruling that the individual mandate is unconstitutional because it can no longer be considered a tax. However, it sent the key question of whether the rest of the ACA can stand without the mandate back to the lower court for further analysis.

Becerra has argued that the lower court’s decision is wrong and, without a definitive ruling from the Supreme Court, the challenge only fuels doubt about the future of the ACA — credited with significantly reducing the ranks of the uninsured.

“The health and wellbeing of millions of our loved ones who rely on the ACA for healthcare is too important. We will do everything in our power to keep fighting for them,” Becerra said in a tweet following the order.

Nevertheless, Tuesday’s result likely thrusts the issue of the ACA back in the spotlight for another presidential campaign cycle.

Much of the healthcare debate among Democrats vying to take on President Donald Trump has revolved around a “Medicare for All” idea. One question now is, will Democrats shift to talk about rescuing the ACA, a law in place but remains in jeopardy?

The problem is the outcome is still uncertain, Stephanie Kennan, senior vice president of federal public affairs at McGuireWoods Consulting, told Healthcare Dive. However, it does give Democrats the opportunity to talk about what’s popular in the bill, noting protections for those with pre-existing conditions.

“It certainly gives them a springboard for them to talk about the things they could do to fix it,” Kennan said.

Despite Tuesday’s outcome, there will still be some Democratic contenders who will campaign for Medicare for All, Bill Jordan, chair of Alston and Bird’s healthcare litigation group, told Healthcare Dive. But this ruling gives Democrats another tool against Republicans, he said.

“As time has gone on, the Affordable Care Act has become more popular, not less popular,” Jordan said.

But he cautioned that anything can happen in the next election, which could entirely alter the political landscape and influence whether the case makes it back up to the Supreme Court if the justices pass this time.

 

 

 

 

Hospitals, insurers urge Supreme Court to hear ACA case to avert havoc

https://www.healthcaredive.com/news/hospitals-insurers-urge-supreme-court-to-hear-aca-case-to-avert-havoc/570525/

Dive Brief:

  • The main lobbying groups for both the hospital and insurance industries filed amicus briefs Wednesday urging the Supreme Court to take on the controversial case seeking to overturn the Affordable Care Act.
  • By sending the key question in the case back down to the lower court for a “do-over,” the appellate court’s ruling “casts a long shadow of uncertainty over ACA-based investments,” America’s Health Insurance Plans said in its brief.
  • Various hospital lobbying groups argued the case creates enormous uncertainty for industry, raising questions about whether they should continue to invest in the provisions that are so closely intertwined with the ACA, according to their brief.

Dive Insight:

Two courts have so far ruled against the landmark health law, finding that the individual mandate is unconstitutional because Congress stripped away the financial penalty for forgoing insurance coverage.

Without the financial penalty attached, the so-called individual mandate can no longer be considered a tax and is therefore unconstitutional, according to the courts. A lower court went even further than the appellate court and found that the entire law must fall because the mandate cannot be severed from the remainder of the ACA.

The appellate court avoided answering this key question regarding severability and sent it back to the lower court for additional analysis. The appellate court ruling generated outcry from industry, which argues the case will take years to wind its way through the courts leaving a cloud of uncertainty in its wake.

The ACA fundamentally reshaped the nation’s healthcare system and is credited with lowering the ranks of the uninsured by millions.

A coalition of blue states that stepped in to defend the law petitioned the Supreme Court to hear the case and asked for an expedited review. Meanwhile, a group of red states looking to overturn the law has argued the case does not merit intervention from the high court.

After failed attempts by Republicans in Congress to kill the law entirely, in 2017 Congress cut the penalty for not having insurance coverage to zero in a unrelated tax bill. The red states and two individual plaintiffs from Texas have argued the move renders the law unconstitutional.

AHIP argues that the ACA can stand without the penalty (and has) since Congress’ changes in 2017.

“Congress has unmistakably indicated through its actions: that the ACA should continue in operation even in the absence of the individual mandate,” AHIP said in its brief, arguing a repeal of the law would “wreak havoc” on the nation’s healthcare system.

Other advocacy groups, including AARP, American Cancer Society and Small Business Majority filed separate briefs urging the Supreme Court to take on the case. A group of bipartisan economic scholars also submitted a brief in support of the Supreme Court taking on the case.

 

 

 

 

The Fifth Circuit Court Hears Arguments on the Future of the ACA

https://www.commonwealthfund.org/blog/2019/fifth-circuit-court-ruling-future-aca

columns at courthouse

The future of the Affordable Care Act (ACA), the millions of Americans who depend on it, and, frankly, the American health care system, every part of which is touched by the ACA, were on the line in a federal courthouse in New Orleans on Tuesday. The Fifth Circuit United States Court of Appeals heard 106 minutes of oral argument in the case of Texas v. U.S., in which a district court judge ruled that the entire ACA was invalid. The case is being pursued by 18 Republican states and two individuals, joined by the United States on the appeal. Twenty-one Democratic attorneys general (AGs) and the U.S. House of Representatives have intervened to defend the ACA.

The plaintiffs argue — in a decision accepted by district court Judge Reed O’Connor — that:

  • the Supreme Court in 2012 held that the ACA’s individual mandate was unconstitutional as a command, and constitutional only as a tax
  • Congress in 2017 zeroed out the tax, leaving the mandate entirely unconstitutional
  • the mandate is essential to the rest of the ACA, which must be invalidated once the mandate is struck down.

The defendants contest each of these claims and further argue that the plaintiffs lack standing to bring the case since they have not been injured by the mandate.

The case was heard by three judges: Carolyn Dineen King, appointed by President Jimmy Carter; Jennifer Walker Elrod, appointed by President George W. Bush; and Kurt D. Engelhardt, appointed by President Donald Trump. Judges Elrod and Engelhardt questioned the parties vigorously; Judge King did not speak during the proceeding.

Nearly half of the argument focused on the question of the plaintiffs’ standing to bring the action and of the Democratic AGs and House to appeal the judgment. Under the Constitution, federal courts can only hear a case challenging a law if at least one of the plaintiffs is actually injured by the law and can only hear an appeal if at least one of the appellants is affected by the judgment.

Judge Elrod seemed skeptical of the argument made by the appellant Democratic AGs that the zeroing out of the tax made compliance with the mandate optional and therefore incapable of harming the plaintiffs. Judges Elrod and Englehardt seemed to accept the plaintiffs’ argument that the mandate remains a legal command, and as such harms the individual plaintiffs by requiring them to buy insurance they do not want. Judge Elrod also suggested that the Republican states might have standing because they had to fill out tax forms related to the mandate.

All the parties agreed that the court had jurisdiction to hear the appeal and did not contest the fact that the invalidation of the ACA would cost the Democratic states a substantial amount of money, although Judge Elrod questioned whether the lower court’s order applied to the Democratic states.

Judges Elrod and Engelhardt also greeted skeptically the argument of the Democratic AGs and House that the 2017 tax bill did not affect the constitutionality of the mandate. The Democratic AGs and House argued that the Supreme Court held in 2012 that the ACA merely gave individuals subject to the mandate a choice between buying insurance or paying a tax. The tax bill did not change this; it simply made the tax optional. The plaintiff–appellees argued that with the tax zeroed out, the mandate was wholly unconstitutional. Judges Elrod and Englehardt seemed sympathetic to this argument, although Judge Elrod prodded the plaintiffs on their position.

The court seemed a bit more uncertain, however, on the consequences of holding the mandate unconstitutional on the rest of the ACA. The Republican AGs argued that the findings section of the ACA created an “inseverability clause” by declaring that the mandate was “essential” to — and thus not severable from — other sections of the ACA. The Democratic AGs and House disagreed, arguing that when Congress adopted the 2017 tax bill it clearly intended to affect no other provisions of the ACA.

The judges seemed unimpressed with the statements made by members of Congress to this effect, asking why Congress did not repeal the mandate or the findings if it meant to preserve the rest of the law. (In fact, Congress couldn’t have done so, since the tax bill was a budget reconciliation bill that could only address provisions with financial impact.) Judge Elrod suggested that some members of Congress might have seen the zeroing out of the mandate tax as a “silver bullet” to bring down the ACA, even though there is no evidence of this and it would impute to Congress the intent to create an unconstitutional law. Judge Engelhardt asked why the Senate was not involved in the case if their intent not to harm the law was so clear.

The position of the Department of Justice (DOJ) on severability was quite murky, frustrating the court. On one hand, the DOJ argued that the entire ACA was inseverable from the mandate and thus invalid. On the other, the DOJ contended that as a matter of remedy, the court (or the district court on remand) should only enjoin compliance of provisions that directly affected the plaintiffs; perhaps only in the states that had sued. Remanding to the district court would likely be a futile exercise. Judge O’Connor has already concluded that the entire statute is inseverable. At one point, as the court pressed the DOJ attorney to clarify his position, he responded, “A lot needs to get sorted out and it’s complicated.”

Judge Englehardt seemed to think the problem was essentially political and should be left to Congress to determine which provisions were invalidated and which survived. Accusing Congress of not taking responsibility to clean up the mess that would be caused by invalidation of the statute overlooks, however, the responsibility of the judiciary not to create the mess in the first place, as the district court has done in its sweeping decision. This is one of the reasons why existing law on severability directs courts to invalidate only so much of a law as is necessary when a provision is found to be unconstitutional.

Listening to the argument, one may conclude that judges Engelhardt and Elrod do not understand the scope of the ACA and the serious trouble that invalidating it in its entirety would cause for the American health care system. Suggesting that Congress could readily “fix” the problems caused by the lower court’s decision or that a supposed “fix” other than reversal is even needed — or possible — reveals a lack of understanding of the scope of the ACA and a frightening degree of irresponsibility.

There seems to be a real possibility, however, that the Fifth Circuit may affirm the lower court’s judgment. It will then again be up to the Supreme Court to sort things out. In the meantime, a Fifth Circuit decision invalidating the ACA will likely become a major issue in the 2020 election. We should see by the fall whether the questions pressed by the court today presage its conclusions.

 

 

 

There’s little chance appeals court will strike down ACA, legal experts say

https://www.modernhealthcare.com/legal/theres-little-chance-appeals-court-will-strike-down-aca-legal-experts-say?utm_source=modern-healthcare-daily-finance&utm_medium=email&utm_campaign=20190708&utm_content=article3-readmore

Seven months after a federal judge struck down the Affordable Care Act, a coalition of 21 Democratic attorneys general will once again defend the landmark healthcare law in New Orleans on Tuesday. The challenge, if upheld, would have far-reaching consequences for millions of Americans and the healthcare companies that serve them.

Left-leaning and conservative legal experts alike say there’s little chance the three-judge panel in New Orleans agrees with the lower court and declare the ACA unconstitutional. The arguments used by the Republican states that sued to wipe out the ACA are “frivolous,” the experts say.

“This case is different from all of the previous Obamacare cases because there is a consensus among the Republican intellectual establishment that the legal arguments are frivolous,” said Yale University health law professor Abbe Gluck. “You’ve got a lot of prominent Republican legal experts siding against the Trump administration in this case, so I think that most people are hoping that this circuit will apply very settled law and reverse the lower-court decision.”

Even so, Democratic senators on Monday were worried that the ACA would ultimately be struck down, causing millions of Americans to lose their insurance and consumer protections overnight without any Trump administration plan to pick up the pieces.

“Make no mistake, this lawsuit has a good chance of succeeding,” Sen. Chris Murphy (D-Conn.) said during a conference call Monday with reporters. “I understand that there are some legal scholars that say that the theory of the petitioners is wacky, but it survived the district court and it now has the administration as a full and complete partner with the attorneys general. There is real muscle on the side of the plaintiffs in this case.”


The appellate court arguments largely mirror those in the district court. This time around, the U.S. Justice Department is urging the 5th U.S. Circuit Court of Appeals to uphold the lower-court ruling that the entire Affordable Care Act must fall because the 2017 Congress reduced the individual mandate penalty to zero. Previously, the Justice Department argued the individual mandate is unconstitutional, but could be “severed” from most of the ACA.

This question of whether the entire ACA must go is the crux of the case. Gluck explained that a non-controversial, settled legal doctrine called “severability” states that the decision to scrap a piece of a law or destroy the whole thing rests on what Congress would have wanted. That’s something courts usually have to guess, but in this case there’s no question what Congress would have wanted: it already zeroed-out the individual mandate penalty and left the rest of the ACA alone.

“It is an absolutely outrageous argument to say that the district court was doing what Congress wanted when Congress in 2017 reduced the penalty and left the entire statute standing,” Gluck said.

Nicholas Bagley, a law professor at the University of Michigan Law School, similarly said, “These are bad legal arguments.”

The odds of the Fifth Circuit declaring the entire ACA unconstitutional are low, he said, given the arguments in the case “are thin to the point of frivolousness, and I think the Fifth Circuit judges will know that, whatever their political disposition may happen to be. But I’d be lying if I said I knew that for sure.”

The panel announced last week includes Judges Jennifer Walker Elrod, Kurt Englehardt and Carolyn Dineen King. Two were appointed by Republican presidents; one is a Democratic appointee. U.S. District Judge Reed O’Connor, who struck down the healthcare law, was also appointed by a Republican president.

Legal experts said it is also likely that oral arguments will devote time to whether the Democratic states and the U.S. House of Representatives have standing to intervene in the case. The Fifth Circuit judges last week asked for supplemental briefs on that question. While the court’s request was seen by some as a sign that it is supportive of the Republican states, others viewed it as normal, given the high stakes and the fact that the Justice Department declined to defend the law.

Gluck said it’s unlikely the court will decide neither the blue states or the House have standing in the case. It would be hard to argue that the Democrat-led states would not be harmed by a ruling that invalidates the entire ACA, and the House has previously intervened to defend a statute when the executive branch chose not to, she said.

But if the Fifth Circuit does decide neither have standing, it would have to decide whether to let the lower-court decision stand or erase it, she said.

Should the appellate court uphold the lower-court ruling, the consequences would be sweeping. In a June analysis, the left-leaning Urban Institute found that the number of uninsured Americans would climb 65% to 50.3 million in 2020 if the ACA is ultimately struck down. The decision would affect not only people who buy coverage in the individual market but also those with coverage through Medicaid expansion, Medicare and from their employers.

That would also impact healthcare providers and insurers.

“No industry has been more directly impacted by the ACA than health insurance providers, which have invested vast amounts of resources to participate in the relevant markets, comply with the law’s myriad reforms, and organize their businesses to operate in a revamped healthcare system,” insurance industry lobbying group America’s Health Insurance Plans wrote in an amicus brief filed in April in support of reversing the lower-court decision.