A bit of history
The ACA requires that insurers cover anyone, even if they have a pre-existing condition. That is an expensive requirement for the insurance companies. After all, you are agreeing to cover someone whom you know will be incurring costs.
In return for this, the ACA requires that everyone has health insurance, the “individual mandate.” That way, people who are not currently sick or are unlikely to get sick will pay for insurance, and the insurance companies will make money to compensate them for paying out to those with pre-existing conditions.
In order to make sure that people buy the health insurance, the ACA established a penalty for not having insurance, to be collected by the IRS when we do our taxes.
In 2012, the US Supreme Court found that the individual mandate was not constitutionally valid under the Constitution’s “interstate commerce” clause, but that it was valid under the “tax” clause. Was this a penalty or a tax? The Obama administration admitted it was a tax, and the Supreme Court said that that was acceptable. The ACA was constitutional.
However, in 2017, Congress passed a major tax cut law. And in that law, it set the value of the tax on the individual mandate to zero. So, it eliminated the penalty for not having health insurance.
In spite of that, people still signed up for insurance under the ACA.
A Texas judge
But in 2018, a group of state Republican attorneys-general brought suit in a Texas court, in front of a judge known to be conservative, claiming that if the individual mandate tax was eliminated, then that eliminated the constitutionality of the mandate. And if the individual mandate was unconstitutional, then that meant that the entire ACA was unconstitutional. The judge threw out the entire ACA.
Is that right? Does an entire law fall if one part of it falls? No, not automatically. There are rules for determining whether an entire law is unconstitutional if a court finds that one part of it is unconstitutional. Most legal scholars (most of whom, admittedly, are liberals) found that the judge in Texas did not come close to following these rules. A number of Democratic attorneys-general appealed the judge’s decision.
The Trump Administration’s first response to this ruling was to not get involved. However, just in the last couple of days, the Administration has changed its position, and recently filed a brief with the Circuit Court of Appeals hearing this case taking the position that the ACA was now completely unconstitutional.
We liberal scholars still think that the Texas judge’s decision was flawed. But having the Administration come out in favor of the ruling is a big deal. And ultimately this is going to go to the US Supreme Court. In my view, any reasonable decision by SCOTUS would throw out the judge’s faulty decision. But my view of what is reasonable and what five conservative judges on the Supreme Court think is reasonable do not always coincide. They may very well throw the whole thing out.
The New York Times coverage
Hence the review by the New York Times this morning:
https://www.nytimes.com/2019/03/26/health/obamacare-trump-health.html
But that is not all. Back in 2017, Congress decided that it was going to repeal and replace the ACA. The Republican controlled House, after a lot of back and forth, passed the American Health Care Act, which sort of repealed and sort of replaced the ACA. The Republican controlled Senate couldn’t find any language they could agree upon. Late one night, a poorly drafted law was put up for a vote, to at least keep the discussion going. Whether it would pass came down to one vote, to be cast by Sen. John McCain, who entered the “well” of the Senate chamber and dramatically extended is hand and indicated “thumbs down.” (In case you were wondering why Trump has been so focused on the now deceased Arizona senator, this is part of that anger.)
The Republican Congress ended up not passing anything. Why? Because it is very, very hard for conservatives to come up with the replacement that was promised. Keep in mind that the ACA is the conservative approach to healthcare reform, published many years ago by the very conservative Heritage Foundation. And the President and most Republicans in Congress had agreed to keep the ban on refusing insurance to those with pre-existing conditions, a very popular position amongst the electorate, given that more than 100 million Americans have a pre-existing condition. But if you want to make insurers cover people with pre-existing conditions, you have to make everyone buy health care. . . . Congress could never figure out a way around this. And both Congress and Trump had also promised to lower healthcare costs, which no one knows how to do. (Short of passing a single payer system, which will give the federal government extraordinary bargaining power over the healthcare providers. This is one of the main reasons why healthcare is much cheaper in the other rich countries around the world.)
Healthcare in the 2020 election
The President has sworn to make this one of the big issues in the 2020 campaign. He vows that the Republican Party will become “the party of healthcare.” At the exact same time, the Democrats in the House have submitted legislation to bolster the ACA, increasing the subsidies, and strengthening other parts of the law. And it is widely viewed that healthcare was one of the big winning issues for Democrats as they took back the House in 2018. They will likely be delighted to have this debate in 2020.
So, here we are. The courts shouldn’t throw out the ACA, if they follow established rules, but they well might. And one house of Congress is making the ACA stronger, while the other house wants to get rid of it.
And the Times has let us know exactly what is at stake. Lots of people’s lives and livelihoods.
Quite a moment!
