SBLC Alert – The Future of the ACA

On Monday, the Supreme Court announced that it will hear the latest challenge to the Affordable Care Act (ACA). While the fact that this case would end up before the highest court is not a surprise, the announcement does bring some clarity to the potential timeline and manner in which this case may play out.

The case, which will go before the Supreme Court under the name Texas et al v. United States of America et al, is actually a consolidation of a few different cases. The underlying challenge to the ACA was brought by more than a dozen Republican Attorneys General and two individual plaintiffs. In response a number of Democrat Attorneys General and Governors, and more recently the Democrat-controlled U.S. House of Representatives, have stepped in to defend the law.

So what is this case all about and where does it stand going into the Supreme Court’s review?

The foundation of this case originated when the Tax Cuts and Jobs Act (TCJA) of 2017 reduced the penalty for non-compliance with ACA’s individual mandate to zero. The parties challenging the ACA have argued that not only did this act render the individual mandate unconstitutional (because it no longer stems from Congress’ power to tax) it also rendered the entirety of the ACA unconstitutional.
In December of 2018, a federal district court judge in Texas ruled in favor of the challengers holding that both the individual mandate and the ACA are unconstitutional in light of the TCJA change. The effect of the ruling was stayed and the case was promptly appealed to the 5th Circuit Court of Appeals.

Approximately a year later, in December 2019, the 5th Circuit upheld part of the District Court’s decision and remanded the remainder back to that court for reconsideration. Specifically, the 5th Circuit agreed that the reduction of the individual mandate penalty to zero renders the individual mandate unconstitutional. The appellate court did not reach a conclusion on the ACA as a whole and instead remanded that issue to the District Court instructing the District Court to conduct a more thorough analysis of which parts of the ACA could stand on their own, as severable from the unconstitutional individual mandate, and which were inextricably linked to the mandate and therefore unconstitutional in and of themselves. In taking this action, the 5th Circuit stated that the District Court needed to “employ a finer-toothed comb” before reaching a conclusion on whether the ACA as a whole was unconstitutional. The 5th Circuit also instructed the District Court to consider whether the outcome should apply just to the states challenging the law or to the entire country.

Throughout all of this, the Trump Administration has apparently struggled to determine what role it wants to play in the matter. First, declining to defend the law in its entirety, then largely siding with those challenging the law and then suggesting that perhaps only parts of the law are unconstitutional.

With the 5th Circuit issuing its decision in December, the big question was whether the case would go to the Supreme Court before the November 2020 elections. Particularly given the large role health care issues played in the outcome of the 2018 elections (and the contributing role they played in Democrats assuming control of the House), Republicans were understandably concerned about the prospect of having the case considered before that time, particularly as there have been no formal proposals for a system to replace the ACA if it is deemed to be unconstitutional.

In January, the parties defending the ACA requested the Supreme Court to place the case on an expedited review schedule so that the matter could be addressed in the Court’s current term. While granting certiorari in a case only requires the votes of four justices, granting expedited review requires five votes. The Court ultimately declined to fast track the case, setting up Monday’s announcement that it will consider the case in its ordinary course and schedule. This means in all likelihood that the case will be argued during the Court’s 2020-2021 term which will commence in October 2020.

With the District Court’s decision stayed pending Supreme Court review, this means that the ACA status quo will continue through the election. While this may draw a sigh of relief from many Republicans, even if the case won’t be decided before the election, there is still a chance it might be argued before the election. As we have seen as this case has developed, and as will only be exacerbated at the Supreme Court level, each significant decision in action in the case casts a light on the overarching issues and debates surrounding the future of the ACA – meaning this case could still pose a political wildcard before the election or for the winners who could find themselves grappling with some very serious decisions depending on the Supreme Court’s ruling.

UPCOMING LEGISLATIVE MEETINGS

• March 18, 2020, 10:00 am – Noon, EST - ICBA offices – 1615 L Street, NW, Suite 900
• May 27, 2020, 10:00 am – Noon, EST - ICBA offices – 1615 L Street, NW, Suite 900
• July 30, 2020, 10:00 am – Noon, EST - By Telephone
• September 24, 2020, 10:00 am – Noon, EST - ICBA offices – 1615 L Street, NW, Suite 900