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Is the PP-ACA Un-Constitutional?

A Texas court has declared the entire ACA unconstitutional

Austin Frakt PhD

By Austin Frakt PhD

And I’ve got an op-ed in the Washington Post about why the court is wrong. Here’s a taste:

Who cares if a zero-dollar mandate is constitutional or not? Why does it matter in the slightest? And what on earth does it have to do with the rest of ACA?

You might have thought that the right remedy would be to invalidate the penalty-free mandate. Doing so would align with Congress’s evident view that an ACA without an individual mandate was preferable to an ACA with it. That’s what I argued in an amicus brief with a bipartisan group of law professors.

Instead, the court held that the entire ACA was “inseverable” from the purportedly unconstitutional mandate. To reach that conclusion, the judge leaned heavily on Congress’s findings from 2010, where it said that the individual mandate was “essential” to the law.

But the mandate that the 2010 Congress said was essential had a penalty attached to it. The finding is irrelevant to a mandate that lacks any such penalty.

In any event, it doesn’t matter what Congress meant to do in 2010. It matters what Congress meant to do in 2017, when a different Congress made a different call about whether the mandate was essential. We know what Congress wanted to do in 2017: repeal the mandate and leave the rest of the act intact. Its judgment could not have been plainer. (I know. I was there! So were you. It wasn’t that long ago.)

***

***

You can read the whole thing here. My co-amici, Jonathan Adler and Abbe Gluck, have a New York Times op-ed sounding similar themes.

I’ll probably write them up more extensively in the coming days, but I’ve also got tentative thoughts about the immediate consequences of the decision (short answer: nothing right now) and the potential difficulties with getting a quick appeal of the decision.

***

***

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4 Responses

  1. Supreme Court Striking Down ObamaCare is ‘Likeliest Outcome’ Trump Aide

    White House senior adviser Stephen Miller on Sunday predicted that the Affordable Care Act will ultimately be struck down by the Supreme Court. “I believe that’s the likeliest outcome, because ObamaCare has always been unconstitutional,” Miller said on CBS’s Face the Nation.

    Miller’s prediction came after a federal judge in Texas on Friday ruled that the Affordable Care Act is unconstitutional. The ruling is likely to face legal challenges, and experts have said they expect the healthcare law will not be impacted. Miller, however, on Sunday called on Democrats “to work with Republicans” to pass a new law “once ObamaCare is ultimately struck down.”

    Source: Michael Burke, The Hill [12/16/18]

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  2. Judge Rules Entire PP-ACA Unconstitutional

    https://www.healthcapital.com/hcc/newsletter/12_18/HTML/TEXAS/convert_hc_topics_tx_v_us_cite_chked_cataloged_12.20.18_hba.php

    Health Capital Consultants, LLC

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  3. USA versus Canadian Healthcare

    A Video: https://www.youtube.com/watch?v=iYOf6hXGx6M

    Dr. David E. Marcinko MBA

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  4. ACA UPDATE

    Appellate Court has ACA’s Individual Mandate in Crosshairs

    A federal appeals court may be poised to deem the ACA’s individual mandate unconstitutional, but appeared to be on the fence about whether they believe that strikes down the entire law. States onboth sides of the constitutional debate faced off before a three-judge panel in the Fifth Circuit court Tuesday afternoon, with the future of the Affordable Care Act hanging in the balance. The judges seemed to wrestle with the question at the crux of theongoing case—can the individual mandate be excised from the law?

    Texas is leading a group of 18 red states that argue Congress’ 2017 decision to set the mandate penalty to $0 prevents it from functioning as a tax. The Supreme Court narrowly ruled in 2012 that theindividual mandate for everyone to get insurance could be enforced as a tax under the Interstate Commerce Clause. The states argue that since that tax has been effectively struck down, then the rest of the law must go as Congress lost its tax authority.

    Source: Paige Minemyer, Robert King, Fierce Healthcare [7/9/19]

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