This blog is written by Mr. Steven C. Schurr, Esq. and focuses on health care law matters that pertain to food and drug law, regulatory compliance, privacy rights, insurance coverage, state and federal disability coverage, patient advocacy issues, and mental health coverage and treatment.

Saturday, December 15, 2018

What Is the Effect of the Recent Court Decision in Texas That Ruled the Entire Affordable Care Act is Unconsitutional?

There is no immediate effect to yesterday's court ruling.  You can still enroll in health care plans on the exchange through the end of today and any plan that you enroll in will be in effect for all of next year.  But there could be long term effects and the decision once again throws uncertainty into the health care insurance industry, which is an industry that does not fare well under, or appreciate, uncertainly.
Technically, that court ruling only effects the federal district in Texas where the court resides and the judge did not order cessation of the law even in that district.  However, the case will be appealed first to the appeals court and then almost certainly to the Supreme Court of the United States where there is a possibility that the Supreme Court could uphold the ruling and invalidate the entire law nationwide.
Such a ruling would be devastating because it would invalidate unrelated portions of the law that have nothing to do with the insurance mandate, such as the expansion of Medicaid and Medicare reforms, and remove protections for pre-existing conditions.
There are two prongs to the court's ruling.  First, the judge ruled that the law can no longer be upheld as a constitutional tax because Republicans removed the tax penalty in 2017.  In 2012, the Supreme Court upheld the law as an acceptable use of Congress's power to tax.
Second the judge ruled that if the insurance mandate part of the law is unconstitutional, the entire law must be unconstitutional because the insurance mandate is a critical component of the law.
However, the entire law is so massive and comprehensive I do not agree that the individual mandate is critical to many of the unrelated provisions of the law which have little to do with insurance coverage.  In addition, there are other parts of the law that do pertain to health care coverage, such as the expansion of Medicaid for the states, that are not affected by the individual mandate.   I do not agree that the entire law should be declared unconstitutional.
Regardless, if the individual mandate is ultimately declared unconstitutional nationwide, this will cause all sorts of problems for the insurance industry and many people will lose their coverage either under their insurance plans or Medicaid.
The bottom line as usual is that you get what you vote for.  If you live in one of these states and ultimately lose you health care as a result of this decision, you have your government to thank: Plaintiffs are the States of Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, Governor Paul LePage of Maine (the “State Plaintiffs”), and individuals Neill Hurley and John Nantz (the “Individual Plaintiffs” and, collectively with the State Plaintiffs, “Plaintiffs”).  If you live in one of these states, your Republican Attorney General filed this suit specifically in an attempt to achieve this result.
Also, if you voted for a Republican congressman or senator and they voted to repeal the tax penalty of the Affordable Care Act, this was an intended consequence.
The chances of a Democrat Congress, a Republican Senate and the President agreeing upon a fix to this problem is very slim indeed.
Below is some of the critical text of the decision:
Texas District Court: Repeal of Penalty Renders Individual Mandate Unconstitutional -- Entire ACA Ruled Invalid (PDF)
55 pages. "Plaintiffs allege that, following passage of the Tax Cuts and Jobs Act of 2017 (TCJA), the Individual Mandate in the [ACA] is unconstitutional. They say it is no longer fairly readable as an exercise of Congress's Tax Power.... The Supreme Court's reasoning in [NFIB v. Sebelius] ... compels the conclusion that the Individual Mandate may no longer be upheld under the Tax Power. And because the Individual Mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause -- as the Supreme Court already held....
"Congress stated many times unequivocally -- through enacted text signed by the President -- that the Individual Mandate is 'essential' to the ACA.... All nine Justices to review the ACA acknowledged this text and Congress's manifest intent to establish the Individual Mandate as the ACA's 'essential' provision.... Because rewriting the ACA without its 'essential' feature is beyond the power of an Article III court, the Court thus adheres to Congress's textually expressed intent and binding Supreme Court precedent to find the Individual Mandate is inseverable from the ACA's remaining provisions....
"Under the law as it now stands, the Individual Mandate no longer 'triggers a tax' beginning in 2019. So long as the shared-responsibility payment is zero, the saving construction articulated in NFIB is inapplicable and the Individual Mandate cannot be upheld under Congress's Tax Power....
"The Court today finds the Individual Mandate is no longer fairly readable as an exercise of Congress's Tax Power and continues to be unsustainable under Congress's Interstate Commerce Power. The Court therefore finds the Individual Mandate, unmoored from a tax, is unconstitutional and GRANTS Plaintiffs' claim for declaratory relief ...
"All told, Congress stated three separate times that the Individual Mandate is essential to the ACA. That is once, twice, three times and plainly. It also stated the absence of the Individual Mandate would 'undercut' its 'regulation of the health insurance market.' Thirteen different times, Congress explained how the Individual Mandate stood as the keystone of the ACA. And six times, Congress explained it was not just the Individual Mandate, but the Individual Mandate 'together with the other provisions' that allowed the ACA to function as Congress intended....On the unambiguous enacted text alone, the Court finds the Individual Mandate is inseverable from the Act to which it is essential....
"For the reasons stated above, the Court grants Plaintiffs partial summary judgment and declares the Individual Mandate, 26 U.S.C. Section 5000A(a), UNCONSTITUTIONAL. Further, the Court declares the remaining provisions of the ACA, Pub. L. 111-148, are INSEVERABLE and therefore INVALID. The Court GRANTS Plaintiffs' claim for declaratory relief[.]"
[Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018)]

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