Let's think about this in terms of health policy.
- Click here for the article.
Texas, leading a coalition of Republican states, heads to the U.S. Supreme Court on Tuesday morning to argue that the Affordable Care Act is unconstitutional and should be struck down in its entirety.
What’s at stake?
Health insurance and popular benefits for millions of Americans, including some 1 million in Texas who have subsidized health insurance plans under the law. The sprawling health law touches nearly every facet of the American health care system — from popular protections for individuals with preexisting conditions to no-cost benefits for certain health services to allowing young adults to stay on their parents’ insurance through age 26. Experts say it’s almost impossible to imagine the chaos that would come from ending the law without a replacement, particularly during the worsening coronavirus pandemic. Texas already has the nation’s highest uninsured rate.
Gov. Greg Abbott said years ago that if the Affordable Care Act were to fall, Texas would be ready with a replacement, but no plan has materialized. It would be difficult for the state to cover the gaps without congressional action, given its limited regulatory authority over the insurance market.
What are the legal arguments?
Texas argues that the entire fate of the act turns on one key provision, the individual mandate. Once a penalty you had to pay for not purchasing insurance, the mandate was set to $0 by Congress in a 2017 tax cut. Texas argues that since the mandate is $0, it cannot be interpreted as a tax, and thus must fall as unconstitutional.
The state’s legal team goes a step further than that — and here’s where it loses some legal scholars. Texas claims that if the individual mandate must fall as unconstitutional, the entirety of the sprawling health law has to go with it. That question of “severability” is at the core of the case.
A number of legal scholars don’t buy that, and a conservative federal appellate court, the 5th U.S. Circuit Court of Appeals, said much the same when it heard the case a few years ago. In its December 2019 ruling, the court said the individual mandate was unconstitutional, but that it needed to hear more arguments about why the rest of the law had to fall with it.
