Last December’s tax law eliminated the tax penalty associated with the Affordable Care Act’s (ACA’s) individual shared responsibility penalty (or individual mandate). Although the mandate still exists in the ACA, the financial penalty associated with not purchasing affordable insurance has been eliminated. On the heels of the tax law’s enactment, 20 states — 18 state attorneys general and two governors — filed a new lawsuit in Federal District Court in Texas that argues that eliminating the penalty means that the entire ACA must be repealed. This is the third time that ACA opponents have tried to use the courts to overturn the ACA — once following its original enactment (which resulted in a Supreme Court decision upholding the mandate as a constitutional tax while converting the Medicaid expansion from mandatory to optional; and a second time in a (failed) effort to stop the Obama Administration from paying premium subsidies to residents of states that rely on the federal Marketplace. In this third challenge, the plaintiffs seek to once again overturn the ACA in its entirety, wiping out federal policies that have helped millions of Americans get health insurance coverage and strengthened access to affordable health care.
As noted in our earlier blog, the plaintiffs contend that the individual mandate was an essential element of the ACA and that by eliminating the penalty, Congress essentially pulled out the keystone on which the entire law rests, meaning that the whole Act must collapse. At the heart of their argument lies the concept of “severability,” that is, whether the repeal of the penalty – and thus, the end of an enforceable mandate – cannot be separated from the rest of the law, thereby leading to its demise. The plaintiffs made this argument despite the fact that during the failed legislative effort to repeal and replace the ACA during 2017, Congress left much of the law intact, and in spite of the fact that when Congress did finally repeal the tax penalty, it left the rest of the law completely untouched.
Shortly after the case was filed, 17 states (including California, New York and the District of Columbia) intervened in the case, arguing against the plaintiff states and supporting the ACA. This past week, as discussed in our earlier GWHealthPolicyMatters blog, the Justice Department took the unusual step of announcing it would not defend two key parts of the ACA -- “guaranteed issue” and “community rating” -- although it would follow standard precedent of defending the other parts of the law.
This important case has drawn substantial interest. Led by George Washington University faculty and legal scholar Tim Jost (of Washington and Lee University), 36 Deans, Chairs, and public health and health law and policy scholars from across the country joined the American Public Health Association in filing an amicus curiae brief in defense of the ACA. The brief notes that, although the cancellation of the tax penalty has reduced the effectiveness of the law, the ACA remains otherwise intact and vital. The brief describes the substantial gains in public health that have accrued under the ACA, including provisions that have:
- helped millions of people to gain insurance coverage and access;
- helped even larger numbers now protected by insurance reforms that require insurers to cover pre-existing conditions, to guarantee access to coverage and to fair prices, regardless of prior health problems,
- support public health and prevention services and efforts to support innovative health care models, such as diabetes prevention programs, and
- fund safety net services, including community health centers and maternal and child home visiting programs.
Termination of the ACA would inflict massive harm in public health. In a similar vein, economic scholars, the American Medical Association, the American Hospital Association, American Cancer Society, AARP, Families USA and others also filed briefs defending the ACA. Also filing a separate brief debunking the severability argument was a group of leading law scholars from across the political spectrum.
(More information about the case and briefs can be found here.)