Quantcast
Connect with us

Why the Texas ruling on Obamacare is on shaky legal ground

Published

on

A Texas judge has ruled that the Affordable Care Act is unconstitutional. For now, his decision has no immediate effect except to toss another fire bomb at a law that has helped 20-plus million people gain insurance and expanded insurance for almost all Americans by such things as requiring insurers to cover pre-existing conditions.

Based on our expertise as health policy scholars, we argue that the ACA is well-settled law by now. This ruling will likely not undo the law. It does, however, add more uncertainty to the ACA while also showing how much Republicans continue to be willing to fight to destroy the law.

ADVERTISEMENT

How did we get to the Texas verdict?

Republicans in Congress spent much of 2017 seeking to repeal and replace the Affordable Care Act. After repeated failed attempts, they celebrated a victory with the passage of the Tax Cuts and Jobs Act of 2017. The tax bill included the repeal of the ACA’s individual shared responsibility penalty, or the penalty imposed on individuals who fail to purchase qualified insurance coverage.

Health policy experts agreed that this would destabilize the individual insurance market without destroying the ACA. And indeed, enrollment in the ACA insurance marketplaces has been decidedly lower this year. Yet, millions of Americans continue to enroll, and a number of states are moving toward expanding Medicaid.

Emboldened by the legislative success of GOP tax reform, however, 20 states, led by Texas and Wisconsin, renewed their efforts to have the ACA declared unconstitutional.

They got every wish. Texas Judge Reed O’Connor struck down the Affordable Care Act as unconstitutional in its entirety.

ADVERTISEMENT

Politics heavily shaped this case. Republican-led states sought a friendly judge in a Texas district court to yet again challenge the constitutionality of the ACA. And California took over the defense of the ACA when the Department of Justice refused to defend its own law.

While many experts anticipated that Judge O’Connor would rule against the ACA, legal experts from both sides of the aisle were baffled by his legal reasoning and the departing from well-established legal precedent.

What’s in the verdict?

Open enrollment for 2019 ended Dec. 15, 2018. A judge in Texas ruled on Dec. 14 that the ACA is unconstitutional.
txking/Shutterstock.com

Judge O’Connor’s opinion addresses three issues: standing, constitutionality of the individual mandate, and a legal principle called severability – that is, should the rest of the ACA stand if the individual mandate is held to be unconstitutional.

ADVERTISEMENT

First, O’Connor agreed with the plaintiffs that they have standing to bring this case. The plaintiffs argued that the individual mandate injures their constitutional rights by forcing them to buy health insurance.

Yet ironically, it is the elimination of the tax penalty that prompted this lawsuit. O’Connor suggested that people will feel nonetheless beholden to follow the law even without the penalty. We find the argument that an unenforced law can cause harm is absurd and merits serious reconsideration on appeal.

Next, O’Connor held that the individual mandate is unconstitutional. In NFIB v. Sebelius, the Supreme Court upheld the individual mandate as a tax. With Congress reducing the individual mandate penalty to zero in the 2017 tax bill, the plaintiffs in the Texas case argue it no longer functions as such.

ADVERTISEMENT

Yet, we think that once more Judge O’Connor ignored reasonable arguments. For one, California argued there are still ways in which the mandate functions as a tax, as some unpaid funds will still be collected in the future. Additionally, many related provisions of the ACA remain intact such as hardship exemptions and reporting requirements.

Moreover, the original rejection of the individual mandate in NFIB v. Sebelius was that it violated the commerce clause of the Constitution by coercing consumers. This may no longer be valid with the penalty being zeroed out.

This issue is, in some ways, the lowest stakes part of the case, as the new tax law ends the penalty (and effectively the individual mandate) on Jan. 1, 2019. But it does control whether the third issue – severability – arises. And, there is symbolic value in being allowed to say that no aspect of the ACA is unconstitutional.

ADVERTISEMENT

Last, in what we consider the most drastic and overstepping aspect of the opinion, Judge O’Connor kills the entire ACA. Emphasizing how “essential” the mandate is to the law, he states that Congress would not want any of it to stand without the individual mandate. Yet, Congress did speak in 2017. It did not repeal the whole of the ACA when they effectively wiped out the individual mandate. It must have thought the rest of the ACA could stand without the mandate.

While important, the individual mandate also does not render the ACA completely worthless. The mandate, which had been used as the stick to enforce compliance, may be gone, but carrots like subsidies to purchase insurance remain and will keep many people in the insurance market.

Wending its way to the Supreme Court?

So what’s next? California has indicated that it intends to appeal the matter to the 5th Circuit Court (which covers Texas, Louisiana and Mississippi), but it is possible that Judge O’Connor may sit on the case for a period before this can happen. We believe that if the 5th Circuit is reasonable, it will overturn the verdict.

ADVERTISEMENT

At the same time, another suit filed in district court in Maryland asks that the ACA be deemed constitutional and that the complete law remain intact.

Actions of these two courts will determine whether there is sufficient uncertainty or danger to the ACA to merit the Supreme Court’s review.

Meanwhile, while heartburn medicine sales may have risen and Twitter has gone alight, in practice, nothing changes. Judge O’Connor did not issue any injunction to stop the enforcement of the ACA. And for now, the Trump administration has indicated that it will continue to enforce the law until ultimately settled.

ADVERTISEMENT

Ultimately, the weakness of plaintiffs’ case means this litigation will likely end, whenever it does, with the ACA largely intact. But in the meantime uncertainty and confusion will reign, and politicians will spin well-worn narratives that the ACA is fundamentally flawed and unlawful.

What if the ruling is upheld?

If the ruling is ultimately upheld, and the ACA really is dead for good, the changes for the American health care system, and every American, would be dramatic.

Of course, most directly affected would be those Americans who obtained coverage through either the Medicaid expansion or in the insurance marketplaces. The popular provision that allows young adults to stay on their parents’ plan would also be undone.

ADVERTISEMENT

Any large scale changes would cause dramatic harm to the entire U.S. health care system, and affect each and every American whether they rely on employer-sponsored insurance, other private insurance, or Medicaid and Medicare.

Even eight years after the its passage, many Americans do not fully grasp the sheer reach of ACA provisions. Look no further than its more than a thousand pages as evidence of its depth and scope.

Gone would be relatively minor, albeit important, provisions like requiring fast-food restaurants to post calorie counts, reviewing insurance premium increases by regulators, and taxing tanning beds.

ADVERTISEMENT

More crucially, gone would be protections for Americans with pre-existing conditions. Gone would also be provisions that eliminate annual and lifetime restrictions by insurers, and the requirement for insurers to provide a minimum level of benefits including mental health, substance abuse and emergency room services.

Gone would also be the filling of the Medicare Part D donut hole that hurt many seniors.

Gone would be provisions that combat fraud and abuse in Medicaid and Medicare.

ADVERTISEMENT

Gone would be provisions for coal miners suffering from black lung and their survivors.

Gone would be efforts to improve provider quality, medical innovation, and data collection efforts to reduce health disparities.

The list keeps going.

ADVERTISEMENT

As we stated before, we believe the ACA should be settled law both in the courts of law and public opinion. It should also finally be settled in the court of politics.

In our view, this frivolous lawsuit and the equally frivolous ruling should not distract us from the serious work ahead in addressing the inadequacies of the American health care system.The Conversation

Simon F. Haeder, Assistant Professor of Political Science, West Virginia University and Valarie Blake, Associate Professor of Health Law, West Virginia University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Enjoy this piece?

… then let us make a small request. Like you, we here at Raw Story believe in the power of progressive journalism — and we’re investing in investigative reporting as other publications give it the ax. Raw Story readers power David Cay Johnston’s DCReport, which we've expanded to keep watch in Washington. We’ve exposed billionaire tax evasion and uncovered White House efforts to poison our water. We’ve revealed financial scams that prey on veterans, and legal efforts to harm workers exploited by abusive bosses. We’ve launched a weekly podcast, “We’ve Got Issues,” focused on issues, not tweets. And unlike other news outlets, we’ve decided to make our original content free. But we need your support to do what we do.

Raw Story is independent. You won’t find mainstream media bias here. We’re not part of a conglomerate, or a project of venture capital bros. From unflinching coverage of racism, to revealing efforts to erode our rights, Raw Story will continue to expose hypocrisy and harm. Unhinged from billionaires and corporate overlords, we fight to ensure no one is forgotten.

We need your support to keep producing quality journalism and deepen our investigative reporting. Every reader contribution, whatever the amount, makes a tremendous difference. Invest with us in the future. Make a one-time contribution to Raw Story Investigates, or click here to become a subscriber. Thank you. Click to donate by check.

Enjoy this piece?

… then let us make a small request. Like you, we here at Raw Story believe in the power of progressive journalism — and we’re investing in investigative reporting as other publications give it the ax. Raw Story readers power David Cay Johnston’s DCReport, which we've expanded to keep watch in Washington. We’ve exposed billionaire tax evasion and uncovered White House efforts to poison our water. We’ve revealed financial scams that prey on veterans, and efforts to harm workers exploited by abusive bosses. We’ve launched a weekly podcast, “We’ve Got Issues,” focused on issues, not tweets. Unlike other news sites, we’ve decided to make our original content free. But we need your support to do what we do.

Raw Story is independent. You won’t find mainstream media bias here. We’re not part of a conglomerate, or a project of venture capital bros. From unflinching coverage of racism, to revealing efforts to erode our rights, Raw Story will continue to expose hypocrisy and harm. Unhinged from corporate overlords, we fight to ensure no one is forgotten.

We need your support to keep producing quality journalism and deepen our investigative reporting. Every reader contribution, whatever the amount, makes a tremendous difference. Invest with us in the future. Make a one-time contribution to Raw Story Investigates, or click here to become a subscriber. Thank you.



Report typos and corrections to: [email protected]. Send news tips to: [email protected].
READ COMMENTS - JOIN THE DISCUSSION
Continue Reading

Breaking Banner

Trump said he wouldn’t cut Medicare — now he says it could be a fun ‘second term project’

Published

on

It's unclear if President Donald Trump is trying to lose the 2020 election or he's simply spitballing with right-wing conservatives, but his latest idea is to gut Medicare in his second term according to the New York Times.

During the 2016 campaign there were at least six occasions in which Trump promised he would protect Medicare.

Continue Reading

CNN

‘It’s always dread with President Trump’: CNN analyst says G7 leaders are revolted they have to meet with Trump again

Published

on

On Thursday's edition of CNN's "The Situation Room," reporter Abby Phillip said that world leaders are feeling "dread" about the prospect of meeting with President Donald Trump after his latest round of erratic behavior on the world stage.

"There is a big test on foreign relations for President Trump this weekend," said host Brianna Keilar. "He's going to the G7. He, Abby, is headed there after insulting Denmark by pulling out of a state visit, keeping in mind that Denmark is a key intel and military ally of the U.S. What is the mood going into this forum?"

"Honestly, it's always dread with President Trump," said Phillip.

Continue Reading
 

Breaking Banner

5.0 earthquake strikes Ridgecrest, California — two months after 7.1

Published

on

Two months after the 7.1 earthquakes that hit outside of Los Angeles, another more modest quake was detected, ABC-7 reported.

While the location of the quake was about 20 miles north of Ridgecrest, California, at the Naval Air Warfare Center China Lake. People as far away as Clark County, Nevada also felt the rumble Thursday afternoon.

https://twitter.com/ClarkCountyNV/status/1164643506494689280

It left several people asking if it was considered a foreshock or a really late aftershock from two months ago.

Continue Reading
 
 

Thank you for whitelisting Raw Story!

As a special thank you, from now until August 31st, we're offering you a discounted rate of $5.99/month to subscribe and get ad-free access. We're honored to have you as a reader. Thank you. :) —Elias, Membership Coordinator
LEARN MORE
close-link
close-image