Texas is once again trying to take the law down.
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Key terms:
- federalism
- commerce clause
- judicial review
- checks and balances
- district judge
- implied powers
A judicial attempt to invalidate the Affordable Care Act (ACA) was given a major boost on Friday, December 14th, when a federal judge in Texas ruled that the ACA, otherwise known as Obamacare, is unconstitutional.
As part of the tax overhaul passed last year, the ACA penalty for not having health insurance was abolished. This went into effect in January, 2018. In a Federal District Court case, Texas v. Azar, in which oral arguments were heard in September of this year, the plaintiffs - Republican officials in 20 states led by Texas Attorney General Ken Paxton - argued that with elimination of the health insurance requirement there is no longer a tax, and therefore the law loses its constitutionality. In brief, “once the heart of the ACA — the individual mandate — is declared unconstitutional, the remainder of the ACA must also fall,” the lawsuit stated.
In a 55-page opinion, federal judge Reed O’Connor writes regarding the lawsuit: “The court finds the individual mandate can no longer be fairly read as an exercise of Congress’s tax power and is still impermissible under the interstate commerce clause ― meaning the individual mandate is unconstitutional…. [T]he court finds the individual mandate is essential to and inseverable from the remainder of the ACA."
This case will likely to go to the U.S. Court of Appeals 5th Circuit, and then possibly on to the Supreme Court, which implies that for now the ACA remains in effect.
Suffice to say, removing the individual mandate does not invalidate ACA on policy grounds. It weakens it, for sure. Indeed, the individual mandate is an integral component of the law, because it facilitates pooling of risk and expands population-wide access. But, it is not a necessary part of the law. ACA can function without it.
I'm a health policy analyst, not a legal expert. So, I won't weigh in on the constitutionality of the individual mandate. Rather, I'll focus on if when one part of ACA, the individual mandate, is found to be unconstitutional the remainder of the law must be jettisoned. Legally, severability implies that if any part of a legislative act is ruled unconstitutional, the remainder shall not be affected. Court decisions tend to favor severability, which, in cases in which certain parts are deemed unconstitutional, preserves as much of the original legislation as possible. In several landmark cases, the Supreme Court held that an unconstitutional provision is severable unless it is evident that "Congress would have preferred no legislation to legislation without that provision, or unless the legislation is incapable of functioning independently without it."
