The ACA saves lives- so why is it being turned into a political game?
By Jill Zorn
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Despite its provisions being popular across party lines, the Affordable Care Act (ACA) continues to be a political football, with Republican politicians largely seeking to repeal it and Democrats seeking to defend and improve the law.
The latest threat is posed by the Texas v. United States case.
The Law Suit
The case has been political from day one. It was filed in 2018 by a group of red state Attorneys General, and was heard by Judge Reed O’Connor, a Republican-appointed, conservative federal judge, handpicked by the plaintiffs. The suit made the argument that since the individual mandate penalty of the ACA was zeroed out by a provision in another law – the 2017 tax cut bill – the entire ACA must now be found to be unconstitutional. While even conservative legal scholars questioned the validity of this argument, Judge O’Connor’s ruling did in fact strike down the entire law.
Judge O’Connor’s decision was then appealed to the Fifth Circuit Court of Appeals. Last week, in a 2-1 decision, the court agreed with the plaintiffs that the individual mandate is unconstitutional. But as Kaiser Health News reports:
“But at the same time, the appeals court majority declined to say how much else of the law can remain. Instead, it ordered 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.’ ”
This means that a final decision on the law suit will be delayed for some time – certainly until after the 2020 election.
The Politics
As stated above, it is red state Attorneys General who filed the law suit. To further illustrate the stark nature of the politics surrounding the case, the U.S. Justice Department of Justice chose to file a brief supporting their effort to overturn the ACA. Usually, the U.S. Justice Department defends laws that are challenged in federal court. With the federal government refusing to defend the law, blue state Attorneys General, led by Xavier Becerra of California and including Connecticut’s William Tong, are listed as the main defenders of the ACA in the suit.
Sending the decision back down to the lower court can also be seen as political. In 2017, Republicans tried to repeal the ACA in Congress, but they didn’t have the votes. Now they are trying to use the judiciary to repeal the law.
But there is a problem: the ACA is now more popular than ever. In fact, polls show that defending the ACA, particularly its most popular provision of allowing people with pre-existing conditions to have coverage, was a major reason that Democrats regained control of the House of Representatives in 2018.
So, even though Republicans were supporting the law suit, it was widely reported that they had serious concerns that a decision to overturn the ACA could hurt their political chances in the upcoming 2020 election. A delay, which can be spun to say the ACA is not currently in danger of going away, is therefore helpful to them.
Threat to the ACA Continues
Even though the appeals court decision has bought some time, there is no question that it still raises the threat level to the ACA. That is why Universal Health Care Foundation spoke out forcefully against the appeals court ruling. (Question-should we quote from the statement?)
Although the blue state Attorneys General are making an attempt to take the law suit straight to the Supreme Court now, it is not clear that this effort will be successful. Meanwhile, the delayed decision adds even more uncertainty into insurance markets. And it makes the stakes for the 2020 election that much higher.
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Resources
Judge Strikes Down ACA Putting Law in Legal Peril – Again, Julie Rovner, Kaiser Health News
A Case That Should Have Been Laughed Out of Court May Kill Obamacare, Nicholas Bagley, The Atlantic
Court Ruling Against ACA Hurts Patients and Destabilizes Health Insurance Markets, Nicole Rapfogel, Emily Gee, and Charles Gaba, Center for American Progress
3 Legal Experts on What the Obamacare Ruling Really Means, Jan Hoffman, New York Times