New Tax Will Help Washington Residents Pay for Long-Term Care

Image result for long term care insurance

In other healthcare news from the Evergreen State, Gov. Inslee also signed a law this week that will provide a new long-term care benefit for state residents starting in 2025. In the furthest-reaching legislation of its type nationally, the new Washington law puts in place a payroll tax of 0.58 percent starting in 2022, and creates a year-long, $100/day allowance for state residents that can be used to pay for nursing home fees, at-home caregivers, and other long-term care needs.

Family members who are full-time caregivers can also receive compensation. Like other states, Washington spends a growing portion of its state budget on paying for long-term care for aging residents, putting a heavy burden on the finances of its Medicaid program that’s expected to worsen as the Baby Boom generation ages. In addition to nursing and caregiver services, the new benefit can also be used for in-home meals, housing repairs, and other services that impact health status.

As with its “public option” plan, Washington has taken the lead on another healthcare coverage issue that will eventually need to be addressed nationwide: the fact that seniors are entering retirement entirely unprepared for the amount they’ll need to spend on long-term care.

Medicaid currently pays for two-thirds of nursing home care and 60 percent of all long-term care costs, and no state is currently prepared for the amount of spending that will be required over the next 25 years. Almost no one buys long-term care insurance, which is unaffordable for most. Any serious attempt to expand coverage over the next few years must take on this critical issue.

 

 

Democrats Have No Safe Options On Health Care

Democrats Have No Safe Options On Health Care

Even though most of the candidates have committed to some form of universal health care, the Democratic primary is turning into a debate about the future of the country’s health care system. Presidential hopefuls have proposed policies ranging from an ambitious four-year plan to transform Medicare into a universal single-payer system, in which the government pays for everyone’s health care and private insurance plans are effectively eliminated, to a more modest scheme that would leave the existing health care system intact but create a government-administered public insurance plan people could choose to purchase. But some of the candidates have been light on policy specifics, so it’s likely that health care will be a big topic at the debates and beyond.

In the abstract, focusing on health care makes a lot of political sense for Democrats. It was a top issue among Democratic voters in the 2018 midterms, and the Trump administration recently renewed its efforts to strike down the Affordable Care Act in the courts, which means the law could be hanging in the balance throughout the primaries and into the general election. A recent ABC News/Washington Post poll also found that Americans, by a 17-point margin, say that President Trump’s handling of health care makes them more likely to oppose him than to support him in 2020. By a similar margin, an Associated Press/NORC poll found that Americans trust Democrats more than Republicans on health care.

All of this means that Democrats are heading into the 2020 election cycle with a serious edge on an issue that has the potential to mobilize their base. But if the candidates pitch big, sweeping changes to the health care system without addressing voters’ concerns about cost and access, that advantage won’t necessarily hold up. And trying to sell Americans on a completely new system carries risks, even in the primaries.

Why do people care about health care so much?

First, it’s important to understand how health care has morphed over the past decade from just another issue to one of the issues voters care most about. In the 2018 exit polls, 41 percent of voters said health care was the most important issue facing the country, up from 25 percent in 2014 and 18 percent in 2012. (It wasn’t asked about in 2016.) And although Democrats are more likely to prioritize health care than Republicans, a Pew Research Center poll from January found that a majority of Republicans say health care costs should be a top priority for Congress and the president.

The reason? Health care is becoming more of a financial burden, according to Mollyann Brodie, executive director for public opinion and survey research at the Kaiser Family Foundation. Specifically, Americans’ out-of-pocket health care costs have risen significantly over the past decade, even for workers who get insurance through their jobs. In an economy that by many measures is doing well, health care — rather than something like taxes — is becoming one of voters’ most important pocketbook issues, she said. “If you’re worried about whether you or your loved ones can afford your next health care bill, that’s really a matter of life or death, so you can understand why this issue is moving to center stage politically.”

And Americans are increasingly likely to say that the government has an important role to play in ensuring access to health care. In November, Gallup found that 57 percent of Americans said they think it’s the federal government’s responsibility to ensure that everyone has health care coverage, up from a low of 42 percent in 2013. Support for the Affordable Care Act rose over the same period, too. But, notably, support for government intervention in the health care system was even higher before President Obama was elected and the ACA passed — in 2006, 69 percent of Americans thought the government should guarantee health care coverage.

While support for government involvement in health care is rebounding, it’s not clear how much change voters are really asking for. “The average American is first and foremost concerned about the financial problems facing their family,” said Robert Blendon, a professor of health policy and political analysis at Harvard. “They’re less worried about system-level concerns like health care spending and inequality. They want their existing coverage to be better and more affordable.”

What do voters want politicians to do?

Americans aren’t opposed to the idea of government-run health care, but there’s not a lot of consensus on what that would mean. For example, a recent Kaiser Family Foundation poll found that a majority (56 percent) of Americans favor a national “Medicare for All” plan. But according to a March Morning Consult poll, Americans are more likely to favor a plan that offers some kind of public option — a government-sponsored health insurance plan available in addition to existing private plans — over a system where everyone is enrolled in the same plan.

But this apparent contradiction makes sense, according to Brodie, because Americans are risk-averse when it comes to health care, and the switch to single-payer would affect far more people than the ACA did. Tens of millions of previously uninsured people received coverage under the ACA, but that number would be dwarfed by the 156 million people who get their insurance through their employers and could see their coverage change if the country switched to a single-payer plan. “Even if the current system isn’t working, transitions are scary,” Brodie said. “And people aren’t necessarily aware of what a national plan really means. When you start telling people that there might not be any more private insurance companies, that’s actually not a popular position.” For example, a January Kaiser Family Foundation poll found that support for a national Medicare for All plan dropped significantly when respondents were told it would mean eliminating private insurance companies.

And when asked what health care policies they want Congress to prioritize, Americans don’t list Medicare for All first. Instead, according to a recent Kaiser Family Foundation poll, they want Congress to pass targeted measures that would lower prescription drug costs, continue the ACA’s protections for preexisting conditions and protect people from surprise medical bills. Only 31 percent of Americans say that implementing Medicare for All should be a top priority for Congress, compared to 68 percent who want lowering drug prices to be a top priority. Moreover, prioritizing Medicare for All is politically polarizing: Only 14 percent of Republicans support putting that kind of plan at the top of the to-do list, compared to 47 percent of Democrats.

Some health care issues get only one-sided support

Share of Republicans and Democrats who say each issue should be a top priority for Congress, and the difference between the parties

Dem. Rep. Diff.
Making sure the ACA’s preexisting condition protections continue 82% 47% D+35
Implementing a national Medicare for All plan 47 14 D+33
Expanding government financial help for those who buy their own insurance coverage on the ACA marketplace to include more people 36 18 D+18
Lowering prescription drug costs for as many Americans as possible 77 66 D+11
Protecting people from surprise high out-of-network medical bills 55 45 D+10
Repealing and replacing the ACA 16 52 R+36

Source: Kaiser Family Foundation

However, smaller policy steps like lowering prescription drug costs and protecting people from surprise medical bills get more bipartisan support. Overall, Americans seem to be more concerned with fixing the current health care system than creating a sweeping new replacement — even if that replacement could address the issues they most want fixed in the current system.

What does this mean for the Democrats?

The complexity of Americans’ views on health care doesn’t change the fact that Democrats have a big advantage over Republicans on this issue, but it does mean that the individual candidates are in a tough spot because there’s no obvious unifying message they can adopt for the primary. And embracing a single-payer plan now could hand the GOP a weapon for the general election, allowing Republicans to frame the health care discussion around the Democrats’ controversial plan while glossing over Trump’s efforts to dismantle the ACA.

“The safest bet for a Democrat in the general election is to emphasize Trump’s track record on health care and say you’re going to make the ACA work,” Blendon said. The problem is that while that kind of argument might appeal to moderates, it’s likely to fall flat among a significant sector of the Democratic base that supports prioritizing a national Medicare for All plan over improving and protecting the ACA.

Democrats arguably still have an opening to make a case for a more ambitious health care overhaul, since voters still have relatively little information about what something like Medicare for All means. “It’s fine to support single-payer if you think that’s where the country needs to go, but you can’t just lean on principles like fairness or equality when you’re selling it,” said David Cutler, an economist at Harvard who advised Obama’s campaign on health care strategy. “You also have to tell voters, very specifically, what you are going to do to lower their costs and improve their coverage next year — not in 10 years.”

Even though Americans mostly prefer Democrats’ health care positions to the GOP’s, Democrats still risk alienating voters if they emphasize bumper-sticker slogans over concrete strategies for reducing the financial burden of health care. This is particularly important because their base of support for a single-payer system may be shallower than it appears, even within the party — especially when it comes to getting rid of private insurance. Big changes to the status quo are always politically challenging, but they may be especially risky when many Americans are concerned about losing the protections they already have.

 

 

 

Warning: Signs of credit crisis grow

https://www.axios.com/credit-crisis-banks-us-debt-4b77bbc4-395b-4c1e-9be4-b29d72548315.html

A credit card machine catching on fire

A recent survey of bank officers shows U.S. institutions are tightening their lending standards and raising rates on commercial loans and credit cards.

Details: Bankers say they have increasing concern about future economic growth, despite continued U.S. labor market strength and solid economic fundamentals. The data banks are seeing runs contrary to the overall narrative of a strong U.S. economy.

Driving the news: Credit card delinquency rates in Q1 hit the highest level since 2012, driven in part by a spike in overdue payments by people ages 18–29, according to a report out this week from the New York Federal Reserve.

What’s happening: In addition to the inability to make credit card payments, the rise in younger borrowers’ delinquency rates — by far the highest among all age groups — reflects the cohort jumping into the credit card market at a faster rate, as well as the eagerness of banks to latch on to younger consumers. Still, the delinquency rate remains well below that seen during the financial crisis.

  • More young people are opening credit cards now than they did in the the past decade — about 52% in 2018 verses 46% in 2008, per the New York Fedpushing up the likelihood of more delinquencies.
  • Credit card accounts among young borrowers fell in 2009 following the passage of the Card Act, which added new rules for consumers under 21 looking to borrow and limited how much banks could advertise to young people.
  • “There has been some recovery in credit card prevalence in recent years, consistent with increased issuance in card accounts,” according to the Fed.

Why it matters: After the financial crisis, young people had been largely debt-averse — particularly with credit cards — as a result of the the Great Recession. But that trend looks to be reversing.

  • “Banks were a little concerned going forward and [expect to] tighten standards,” David Norris, head of U.S. credit at TwentyFour Asset Management, tells Axios.
  • “I think from the viewpoint of the marketplace, if that’s going to continue … it works its way into consumer spending habits, consumer attitudes, and that can affect the demand side of the economy.”

That move comes as U.S. debt is $1 trillion higher than its previous record…

The N.Y. Fed’s latest report shows that total household debt increased by $124 billion in Q1. It was the 19th consecutive quarter with an increase, and household debt is now $993 billion higher than the previous peak of $12.68 trillion in the third quarter of 2008.

Between the lines: Delinquency rates are trending up again, and not just for younger consumers.

  • The report found that seriously delinquent credit card balances have also risen for consumers aged 50–69.
  • For borrowers aged 50–59 and 60–69, the 90-day delinquency rate increased by nearly 100 basis points each.

“People are probably extending themselves too much,” said TwentyFour’s David Norris, also noting that the headline numbers for Q1 U.S. GDP were a bit misleading.

  • “Banks are seeing this currently and they’re beginning to get concerned about credit quality and the quality of borrowers and they’re trying to tighten standards. This is a signal that we need to watch out for.”

A deeper look at the credit card delinquencies that are steadily rising…

  • In the Fed’s latest U.S. bank senior loan officers survey, which provided data from the fourth quarter of 2018, loan officers predicted more delinquencies this year as a result of the growth of “non-prime” borrowers. They’ve cited that as a reason for an anticipated pullback in credit and an increase in rates.
  • U.S. card holders are expected to pay $122 billion just in interest charges this year. That’s 50% more than what they paid just 5 years ago.
  • The average credit card assessed interest rate is now 16.91%. It was 13.14% in the first quarter of 2014.
  • The average interest rate on retail cards is more than 25%.

 

 

 

Uninsurance of children, parents inched back up in 2017, report finds

https://www.healthcaredive.com/news/uninsurance-of-children-parents-inched-back-up-in-2017-report-finds/554590/

Dive Brief:

  • After improving for several years, insurance gains and participation in Medicaid and the Children’s Health Insurance Program tilted downward in 2017, a new Urban Institute report shows.
  • In the first three years following implementation of the Affordable Care Act, the uninsurance rate dropped from 7% to 4.3% among children and from 17.6% to 11% among parents, or about 40% for both groups. In 2017, however, the children’s uninsurance rate inched back up to 4.6%, or an additional 281,000 uninsured children, and parents’ coverage rate stalled.
  • Uninsurance rates rose both in states with and without the ACA’s Medicaid expansion, but the increase was more pronounced in states without expansion programs.

Dive Insight:

The findings jibe with recent data from the Centers for Disease Control’s National Health Interview Survey, which showed more than 1.1 million Americans lost health coverage in 2018, pushing the total number of uninsured from 29.3 million in 2017 to 30.4 million last year. Among surveyed adults between 18 and 64 years old, 13.3% were uninsured, 19.4% had public health coverage and 68.9% had private coverage.

The trend coincides with Trump administration efforts to weaken the ACA by eliminating several mechanisms meant to stabilize payers participating in ACA exchanges and pushing stripped-down, noncompliant health plans. The result has been rising premiums and a resurgence in the number of uninsured.

Adding to uncertainty about the ACA’s future is the U.S. Department of Justice’s support for a Texas federal district court that ruled the law unconstitutional without its individual mandate penalty, which a Republican-led Congress removed in 2017. A previous Urban Institute report estimated up to 20 million Americans would lose health insurance if the lawsuit prevails — a majority of whom are currently covered through Medicaid expansions and ACA exchanges.

While the ACA remains in legal jeopardy, Democrats and presidential candidates are looking at ways to increase the numbers of insured Americans, from shoring up the ACA to implementing some type of single-payer system or “Medicaid for All.”

According to the Urban Institute, participation in Medicaid/CHIP among children increased from 88.7% in 2013 to 93.7% in 2016, and from 67.6% to 79.9% for parents. Those gains reversed in 2017, however, with Medicaid/CHIP participation dropping to 93.1% among children and remaining unchanged for parents.

Among those who did not enroll in Medicaid/CHIP in 2017, 2 million children and 1.7 million parents were eligible for the programs — versus 1.9 million and a steady 1.7 million, respectively, in 2016.

More than half of the uninsured children and parents who were eligible for the Medicaid/CHIP lived in California, Florida, Georgia, Illinois, Indiana, New York, Pennsylvania and Texas, according to combined 2016-2017 data.

Parents were more than twice as likely to be uninsured as children in 2017. For example, children’s uninsurance rate was less than 5% in most states and under 10% in nearly every state, while parents’ uninsurance was less than 5% in just four states and over 10% in close to half the states, the report says.

The decline in improvement was worse among certain subgroups. “In 2017, the uninsurance rate was nearly 6% or higher among adolescents, Hispanic and American Indian/Alaska Native children, citizen children with noncitizen parents, and noncitizen children,” according to the report. “And consistent with prior years, one in six parents or more who were ages 19 5o 24, Hispanic or American Indian/Alaska Native, below 100 percent of FPL [federal poverty level], receiving SNAP [Supplemental Nutrition Assistance Program] benefits, or noncitizen were uninsured in 2017.”

 

 

 

 

 

 

Number of uninsured adults reaches post-ACA high

https://www.healthcaredive.com/news/number-of-uninsured-adults-reaches-post-aca-high/546653/

Dive Brief:

  • The uninsured rate in the U.S. is at a four-year high, having reached 13.7% in the fourth quarter of 2018, according to a new Gallup poll. That rate is the highest since the Affordable Care Act’s individual mandate was implemented in 2014. 
  • Despite the rise in the uninsured rate, it’s still below the peak of 18%, recorded in the third quarter of 2013. That figure then dropped to an all-time low of 10.9% in 2016. The elimination of the individual mandate penalty, cost-sharing reductions and other policy decisions made under the Trump administration have helped boost the rate back up. 
  • According to Gallup, the uninsured rate has increased most among women, young adults and low-income Americans. Separate research has shown the number of uninsured children in the U.S. has also increased for the first time in over a decade.  

While employees are one of the largest costs for most hospitals, they’re also critical to the success of health systems. Our Trendline covers everything you need to know about labor in the healthcare industry

Dive Insight:

The Affordable Care Act helped the U.S. reach historical lows for the rate of uninsured adults, but that figure has continued to tick back up as the Trump administration has undermined the law.

In all, the 2.8 percentage point increase since 2016’s low point represents about 7 million more uninsured Americans. Most of those 7 million became uninsured in 2017, which experienced the largest single-year increase (1.3 percentage points) since Gallup began polling Americans on the question in 2008.

The continued rise in the uninsured rate is reversing the gains made under the Affordable Care Act.

The ACA ushered in a time when people could buy insurance not tied to a job — without having to worry about being denied for having a pre-existing condition such as diabetes or cancer. Plus, it allowed states to expand Medicaid to low-income residents who otherwise could not afford to purchase private coverage on their own.

During that time of record-low uninsured rates, many Americans were required to have health insurance or risked incurring a financial penalty.

But once President Donald Trump was elected he began working to overturn the law. In December 2017, the GOP’s tax bill eliminated the financial penalty for not having insurance. 

A separate Commonwealth Fund report found that the uninsured rate was up significantly among working adults in states that did not expand Medicaid.

 

 

 

Can States Fill the Gap if the Federal Government Overturns Preexisting-Condition Protections?

https://www.commonwealthfund.org/blog/2019/can-states-fill-gap-preexisting-condition-protections

Image result for state laws

Once again, the Affordable Care Act (ACA) is under threat, this time in the form of Texas v. Azar, a federal lawsuit challenging its constitutionality. This litigation, now under consideration by the Fifth Circuit Court of Appeals, took an unexpected turn in March when the U.S. Department of Justice (DOJ) sided with the plaintiffs, urging the Court to strike the ACA down in its entirety.

On May 1, the administration filed a brief in support of this action. But even before this suit, DOJ had refused to defend key provisions that guarantee coverage of preexisting conditions. If the courts agree with the DOJ, it would invalidate every provision of the 2010 law.

As many as 20 million people nationwide would lose their coverage, while millions more could face insurance company denials, premium surcharges, or high out-of-pocket costs because of their health status.

ACA Protections for People with Preexisting Conditions

  • Guaranteed issue. Health insurers are prohibited from denying an individual or employer group a policy based on their health status.
  • Community rating. Health insurers may not use an individual or small employer group’s health status to set premiums.
  • Preexisting condition exclusions. Health insurers and employer group plans are prohibited from refusing to cover services needed to treat a preexisting condition.
  • Essential health benefits. Health insurers selling to individuals and small employers must cover a minimum set of 10 “essential” benefits: ambulatory services; emergency services; hospitalization; maternity and newborn care; mental health and substance use disorder services; prescription drugs; rehabilitative and habilitative services and devices; laboratory services; preventive and wellness services; and pediatric services, including oral and vision care.
  • Cost-sharing protections. Health insurers and employer group plans must cap the amount enrollees pay out-of-pocket for health care services each year.
  • Annual and lifetime limits. Health insurers and employer group plans are prohibited from imposing annual or lifetime dollar limits on essential health benefits.
  • Preventive services. Health insurers and employer group plans are required to cover evidence-based preventive services without any enrollee cost-sharing.
  • Nondiscrimination. Health insurers must implement benefit designs for individuals and small employers that do not discriminate based on age, disability, or expected length of life.

To help blunt potential fallout and prevent adverse effects for millions of individuals, several states are enacting bills to ensure that federal ACA protections become part of state law (see box). However, before the ACA, state efforts to require insurers to cover people with preexisting conditions resulted in large premium spikes and, in some cases, caused insurers to exit the market.

The ACA’s premium subsidies have had a critical stabilizing effect. If those subsidies are invalidated, states will have a hard time restoring them with state dollars. In addition, state regulation of self-funded employer plans is preempted under the federal Employee Retirement Income Security Act (ERISA), meaning the 61 percent of people with this type of job-based coverage can regain their protections under the ACA only if Congress steps in to restore them.

States Are Stepping Up, but Power to Fully Protect Consumers Is Limited

In a previous post, we found that at least four states (Colorado, Massachusetts, New York, and Virginia) had laws that would preserve key ACA preexisting-condition protections if the federal law is overturned. Since that time, seven more states (Connecticut, Hawaii, Indiana, Maine, Maryland,1 New Mexico, and Washington) have acted to preserve the ACA’s protections for their residents.

These bills take different approaches. Maine, New Mexico, and Washington passed comprehensive bills that would preserve all the protections listed above. The Connecticut, Hawaii, and Indiana laws are more narrowly focused. Hawaii and Indiana prohibit insurers from imposing preexisting condition exclusions; Connecticut aligns its benefit standards with the ACA. Maryland took a different approach, creating a workgroup to recommend ways to protect residents if the ACA is struck down. The governors of New Jersey and Rhode Island have issued executive orders directing their state agencies to uphold the ACA’s principles, by guarding against discrimination based on preexisting conditions and strengthening consumer protections to ensure access to affordable coverage.

Looking Forward

The Fifth Circuit Court of Appeals is expected to hear arguments in Texas v. Azar in July. Whatever that court decides, the losing party is likely to ask the Supreme Court to hear the case, and a ruling could come as soon as June 2020. With the future of the ACA hanging in the balance, at least 14 other states are considering legislation codifying some of the federal consumer protections during their 2019 sessions.

 

 

 

Trump Administration Files Formal Request to Strike Down All of Obamacare

The Trump administration formally declared its opposition to the entire Affordable Care Act on Wednesday, arguing in a federal appeals court filing that the signature Obama-era legislation was unconstitutional and should be struck down.

Such a decision could end health insurance for some 21 million Americans and affect many millions more who benefit from the law’s protections for people with pre-existing medical conditions and required coverage for pregnancy, prescription drugs and mental health.

In filing the brief, the administration abandoned an earlier position — that some portions of the law, including the provision allowing states to expand their Medicaid programs, should stand. The switch, which the administration disclosed in late March, has confounded many people in Washington, even within the Republican Party, who came to realize that health insurance and a commitment to protecting the A.C.A. were among the main issues that propelled Democrats to a majority in the House of Representatives last fall.

The filing was made in a case challenging the law brought by Ken Paxton, the attorney general of Texas, and 17 other Republican-led states. In December, a federal judge from the Northern District of Texas, Reed O’Connor, ruled that the law was unconstitutional.

A group of 21 Democratic-led states, headed by California, immediately appealed, and the case is now before the Fifth Circuit Court of Appeals in New Orleans. The House of Representatives has joined the case as well to defend the law.

Democrats wasted no time responding to the filing Wednesday. Xavier Becerra, the attorney general of California, a Democrat, said: “The Trump administration chose to abandon ship in defending our national health care law and the hundreds of millions of Americans who depend on it for their medical care. Our legal coalition will vigorously defend the law and the Americans President Trump has abandoned.”

The government’s brief did not shed light on why it had altered its earlier position, referring only to “further consideration and review of the district court’s opinion.”

Oral arguments in the appeals court are expected in July, with a possible decision by the end of the year, as the 2020 presidential campaign gets going in earnest. Whichever side loses is expected to appeal to the Supreme Court.

The Justice Department’s request to expedite oral arguments, granted last month, suggests that the administration is eager for a final ruling. In its application, it said that “prompt resolution of this case will help reduce uncertainty in the health care sector, and other areas affected by the Affordable Care Act.”

Democrats, seizing on the health law’s popularity and its decisive role in their winning the House last fall, are already using the case as a cudgel against President Trump as his re-election campaign gets started. The law’s guarantee of coverage for people with pre-existing medical conditions, in particular, remains very popular with voters in both parties as well as independents.

But Mr. Trump has appeared undaunted, tweeting in April that “Republicans will always support Pre-Existing Conditions” and that a replacement plan “will be on full display during the Election as a much better & less expensive alternative to Obamacare.”

Instead of providing specifics, though, Mr. Trump, members of his administration and other Republicans have focused on attacking the Medicare for All plans that some Democratic presidential candidates have sponsored or endorsed as a dangerous far-left idea that would, as Mr. Trump tweeted, cause millions of Americans “to lose their beloved private health insurance.”

As the administration and Texas noted in their briefs, Judge O’Connor’s ruling turned on the law’s requirement that most people have health coverage or be subject to a tax penalty.

But in the 2017 tax legislation, Congress reduced that penalty to zero, effectively eliminating it. Judge O’Connor, the plaintiff states, and now the Trump administration reasoned that, like a house of cards, when the tax penalty fell, the so-called individual mandate became unconstitutional and unenforceable. Therefore, the entire law had to fall as well.

Mr. Paxton, the Texas attorney general, whose office also filed a brief on Wednesday, said: “Congress meant for the individual mandate to be the centerpiece of Obamacare. Without the constitutional justification for the centerpiece, the law must go down.”

Whether that position will survive judicial scrutiny is another question. Nicholas Bagley, who teaches health law at the University of Michigan Law School, noted that only two lawyers signed the brief. That is highly unusual in a case with such a high profile, he said.

“This is a testament to the outrageousness of the Justice Department position, that no reasonable argument could be made in the statute’s defense,” Mr. Bagley said. “It is a truly indefensible position. This is just partisan hardball.”

Many legal scholars have also said that even before appellate judges wade into the more obscure pools of legal reasoning, they could reach a decision by addressing the question of congressional intent. If Congress had meant the erasure of the tax penalty to wipe out the entire act, such an argument goes, it would have said so.

If the Fifth Circuit overturns the O’Connor decision, there is no guarantee that the Supreme Court would take an appeal. The court has ruled on two earlier A.C.A. challenges, finding in favor of the act, although narrowing it.

Of course, the composition of the Supreme Court has since changed.