Fox News is reporting that the Fifth Circuit Court of Appeals has struck down the individual mandate in the Affordable Care Act, more commonly known as Obamacare. The mandate requires that anyone who does not have health insurance from any other source, for instance from one’s workplace, purchase it on one of the state or federal exchanges. The decision sets up a certain battle in the Supreme Court.
The individual mandate has made its way through the courts before, The last time it was considered by the Supreme Court a penalty was assessed for people who would not or could not buy health insurance on one of the exchanges. While plaintiffs maintained that the mandate was unconstitutional because it forced Americans to purchase a product from a private company, the Supreme Court ruled in 2012 that the mandate was a tax, because of the existence of a penalty.
After the original ruling that took place in 2012, Congress removed the penalty from the individual mandate. Then, several states, including Texas, filed suit, noting that without the penalty, the individual mandate can no longer be considered a tax. The court agreed with the plaintiffs. The case is all but certain to be appealed to the Supreme Court.
The Fifth Circuit left undecided the question of severability. If the individual mandate is severable, then the rest of the Affordable Care Act can remain in place. However, if it is not severable, then the ACA goes away entirely as if it had never been passed.
If Obamacare goes down in flames, a huge political issue will be born. Americans like some parts of the ACA, particularly the part that prohibits health insurance companies from discriminating against customers based on preexisting conditions.
Before Obamacare, an insurance company could refuse to cover a medical condition, such as cancer, if the customer had it before signing on to the healthcare policy. If Obamacare is struck down entirely, then Congress will have the headache of bringing back provisions such as preexisting conditions against the backdrop of hyper-partisan healthcare politics.
Politico notes that further litigation is going to take some time because the Fifth Circuit ducked the question of severability, sending it back to the lower court,
“The high-stakes ruling keeps the legal threat to Obamacare alive while reducing the likelihood the Supreme Court could render a final verdict on the law before the next elections. Still, the appeals court’s decision could renew pressure on President Donald Trump and Republicans to explain how they will preserve insurance protections for preexisting conditions after failing to agree on an Obamacare replacement for years.”
Long term observers of health care politics suggest that a big congressional fight has just been set up. President Trump and congressional Republicans would like a freer market-based healthcare insurance system. The left-wing of the Democratic Party, especially Bernie Sanders and Elizabeth Warren in the Senate and Alexandria Ocasio-Cortez and the rest of the “Squad” would likely insist on cutting the Gordian Knot and impose a Medicare for All scheme.
Forbes suggests that the Fifth Circuit ruling allows both the courts and Congress to reform healthcare the right way.
“First, on law, the appeals court has given the lower court an opportunity to correct its prior judicial error, and to surgically remove from the ACA those parts of the law that are directly related to the individual mandate; in particular, those that increase premiums for healthier and younger individuals, such as age bands (overcharging young people) and community rating (overcharging healthy people). This more surgical approach is almost certain to be upheld by the Fifth Circuit and by the Supreme Court. Indeed, there is considerable evidence that such an outcome is the one that Supreme Court Chief Justice John Roberts originally sought, and failed to gain, from his colleagues. Second, by clearing out these unconstitutional aspects of Obamacare, the courts will give Congress an opportunity to reform the individual insurance market in the right way: through reinsurance, or an invisible high-risk pool, that directly subsidizes the costs of those with pre-existing conditions or poor health status, without making insurance unaffordable for the healthy uninsured. Arkansas Rep. Bruce Westerman (R.) has proposed just such a policy in his 2019 health reform plan, the Fair Care Act.”
Nothing is likely to happen before the next presidential election, though, which makes its outcome all the more important.