A federal appeals court panel in New Orleans has dealt another blow to the Affordable Care Act, agreeing with a lower-court judge that the portion of the health law requiring most people to have coverage is unconstitutional now that Congress has eliminated the tax penalty that was intended to enforce it.
The appeals court, however, did not rule on how much of the rest of the law is now unconstitutional. Instead, it sent the case back to the lower court to make that determination.
That most likely means the fate of the law is unlikely to be settled before the 2020 election.
The stakes could not be higher. The case is widely expected to end up at the Supreme Court. And if the high court — which has upheld the ACA twice since its original passage in 2010 — agrees with the appeals court, the decision could upend the nation’s entire health care system.
Hanging in the balance is not only health coverage for the roughly 20 million Americans directly served by the ACA, but also hundreds of millions more whose health care and coverage have been affected by the thousands of changes to the health care system enacted in the law. Those include provisions as wide-ranging as changes in Medicare drug copayments, requirements for calorie counts on menus, a pathway for approval of generic copies of expensive biologic drugs and, perhaps most important politically, protections for people with preexisting conditions.
Two of the three judges on the panel agreed with the plaintiffs in the case who wanted the law struck down. Judge Jennifer Walker Elrod wrote that “the individual mandate is unconstitutional because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power.”
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But at the same time, the appeals court majority declined to say how much else of the law can remain. Instead, it sent the case back, ordering the lower court “to employ a finer-toothed comb … and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the individual mandate.”
The third judge on the panel, Carolyn Dineen King, disagreed with both the lower court and the other two judges. In her dissent, she wrote that sending the case back to the lower court “will unnecessarily prolong this litigation and the concomitant uncertainty over the future of the healthcare sector.”
A group of Republican state attorneys general and governors filed the case, Texas v. United States, in early 2018. They charged that when Congress eliminated the financial penalty for not having insurance as part of its 2017 tax bill, it rendered the rest of the health law moot. That is because the 2012 Supreme Court decision upholding the law said it was the tax that made the law constitutional, since the ACA relied on appropriate taxing powers given to Congress through the Constitution.
Legal scholars on both sides say that logic is flawed, but in December 2018, U.S. District Judge Reed O’Connor, of the Northern District of Texas, ruled the entire law unconstitutional.
The Trump administration, meanwhile, has taken several positions on the case. Last year, it told the lower court it did not believe eliminating the tax required the entire law to be declared void.
But Justice Department officials said they supported striking down the provisions of the law most closely tied to the tax penalty: the ones requiring insurance companies to sell coverage to people with preexisting health conditions and not charge them more. Those are among the most popular provisions of the law. Democrats’ success in taking back the House in last year’s midterm elections was largely credited to consumers’ fears of losing that provision when Republicans threatened to repeal the health law in 2017.
After the lower-court ruling, however, the administration decided to support the GOP plaintiffs. In March, a Justice Department spokeswoman said officials had “determined that the district court’s comprehensive opinion came to the correct conclusion and will support it on appeal.”
That left a group of Democratic state attorneys general to defend the law, led by California’s Xavier Becerra, along with the U.S. House of Representatives, which voted in January, after Democrats formally took over the majority, to join the lawsuit.
But in July, the administration’s position shifted again. In a filing with the court, its attorneys argued that perhaps the health law should be invalidated only in the GOP states that are suing, rather than in all states. It is unclear how that would work.