Supreme Court Determines Fate of the Affordable Care Act During a Pandemic
Health policy has absolutely nothing to do with the United States Supreme Court’s pending decision in California v. Texas, according to newly confirmed Supreme Court Justice Amy Coney Barrett.
The then nominee for Supreme Court Justice, when asked by Senator Diane Feinstein about whether life-saving provisions of the Affordable Care Act (“ACA”) such as the prohibition on lifetime maximums and pre-existing condition exclusions for health insurance coverage would factor into her decision on the constitutionality of the ACA, Judge Barrett stated that policy was not part of her decision-making process and she would leave policy considerations up to the legislative branch.
How is it possible for the justices not to consider health policy in making this decision amid a global pandemic? The United States has reported over 11 million COVID-19 infections and 246,000 deaths.
Due to the ACA’s Medicaid expansion provision, 655,300 individuals in the state of Illinois are now eligible for and enrolled in Medicaid. Over 250,000 Illinoisans have obtained health insurance coverage through the ACA’s Marketplace. More than 5 million non-elderly Illinoisans benefit from the ACA’s mandate against pre-existing condition exclusions by insurers, as they suffer from chronic health conditions and have a medical history.
Ruling the ACA unconstitutional would result in the loss of health insurance coverage for nearly one million Illinoisans - 20 million Americans nationwide.
The justices are merely human beings, and as such, it is difficult to believe they would not consider the repercussions of overturning the ACA amid a pandemic for the American public, and their legacies.
Why is the Supreme Court Hearing this Case Now?
California v. Texas marks the seventh case the Court will hear regarding the ACA.
Most notably the United States Supreme Court’s 2012 decision in National Federation of Independent Business v. Sebelius, upheld the constitutionality of the ACA. Chief Justice John Roberts delivered the 5-4 majority opinion to uphold the ACA’s individual mandate as a constitutional exercise of Congress taxing power.
In Texas v. United States, twenty Republican Attorney Generals, Governors of the states of Maine and Mississippi, and two individual plaintiffs challenged the constitutionality of the ACA’s individual mandate following the 2017 Tax Cuts and Job Reform Act, which reduced the individual mandate penalty to $0 as of January 1, 2019.
Plaintiffs argued the individual mandate without a penalty is no longer sustainable under the 2012 decision in National Federation of Independent Business v. Sebelius. A penalty generating no revenue is no longer a tax. They further argued the entire ACA should be struck down because the mandate was “essential” to the law; therefore, is not severable.
U.S. District Court Judge Reed O’Connor issued a sweeping ruling in Texas v. United States invalidating the entire ACA. The result of this ruling, if ever implemented, is the entire ACA would no longer have effect.
On December 30, 2018, Judge O’Connor issued a stay of his December 14, 2018 ruling. The stay barred any application of his order until the ruling in his case were upheld or overturned. Parties to the lawsuit immediately appealed the decision to the U.S. Court of Appeals for the Fifth Circuit.
As expected the conservative leaning U.S. Court of Appeals for the Fifth Circuit, in a 2-to-1 panel decision, held the ACA’s individual mandate is unconstitutional, however, sent the case back down to the U.S. District Court for further review of the issue of severability.
The Supreme Court granted California’s petition for review of the Fifth Circuit’s decision, as well as a petition filed by Texas requesting the U.S. District Court’s decision be upheld. By granting both petitions, the Court will consider all legal issues in Texas v. United States.
The Court must determine –
- whether the plaintiffs have standing,
- whether a penalty not generating revenue is a tax,
- the constitutionality of the individual mandate with a zeroed-out penalty, and
- whether the remainder of the ACA can be severed from the individual mandate.
Oral Arguments Reveal Justices’ Opinions
On November 10, 2020, the Supreme Court heard oral arguments in California v. Texas, giving a preview of the justices’ thoughts on the case.
While it is not entirely clear where a majority of justices will land on the constitutionality of the individual mandate with a zeroed-out penalty issue, questions posed by Justices Roberts and Kavanaugh reveal a majority would support severing and preserving the ACA from any provision held unconstitutional.
Chief Justice John Roberts, in a telling statement while questioning Kyle Hawkins, the solicitor general for the state of Texas, said “it’s hard for you to argue” the 2017 Congress intended for the entire ACA to fall due to its action of zeroing out the individual mandate penalty. Congress left the ACA intact, which is compelling evidence of severability. In other words, Justice Roberts is saying to Congress the Supreme Court refuses to do your dirty work. If you want to overturn the ACA, then you must legislate that action.
Similarly, Justice Kavanaugh in his questioning of attorney Don Verrilli, who represents the US House of Representatives, stated the case is “very straightforward” under the Court’s precedents on severability. These precedents include a plurality decision delivered by Justice Kavanaugh in the last term where he indicated there is a strong presumption in favor of severability. Kavanaugh wrote "[c]onstitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.”
Thus, with Justice Kavanaugh joining Chief Justice Roberts in favoring severability of the ACA, this would likely result in a 5-4 majority opinion that would uphold the ACA, even if the Court finds the individual mandate provision to be unconstitutional.
We must wait for the Supreme Court’s final majority opinion to determine whether the justices were swayed by health policy concerns in their decision-making process. The ACA has survived a decade, as gleaned from the oral arguments in California v. Texas the ACA appears to have survived yet another review by the highest Court.
Perhaps, as noted by Justice Barrett, the justices will leave necessary revisions to the ACA in the hands of Congress who must address health policy needs in America.
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Prof. Tessica Dooley earned her Juris Doctor from William H. Bowen School of Law in Little Rock, Arkansas. She is an Assistant Professor of Legal Studies at UIS and currently teaches in the areas of constitutional law, legal research and citation, health care law, and business law. Her research interests broadly include U.S. health policy and social justice, ERISA, and the impact of the Affordable Care Act on business.
140 S. Ct. 1262, 206 L. Ed. 2d 253 (2020).
 Centers for Disease Control and Prevention, CDC COVID Data Tracker (November 17, 2020), https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days.
 Kendal Orgera, Jennifer Tolbert, and Natalie Singer, State Health Care Snapshots: Illinois, Kaiser Family Foundation (November 17, 2020), https://www.kff.org/statedata/election-state-fact-sheets/illinois.
 132 S. Ct. 2566 (2012).
 340 F.Supp.3d 579 (N.D. Tex. 2018).
 352 F.Supp.3d 665 (N.D. Tex. 2018).
 945 F.3d 355, 402 (5th Circ. 2019).
Barr v. Am. Ass'n of Political Consultants, Inc, 140 S. Ct. 2335, 2367, 207 L. Ed. 2d 784 (2020).