The Supreme Court largely stayed out of the spotlight in the frenzied week following election day. But on Tuesday The judges hear a case This could turn the country’s health system upside down amid a pandemic, leaving tens of millions of people without health insurance.
In California versus Texas, a Group of 18 Republican-led states and two people living in Texas are questioning the constitutionality of a key component of the Affordable Care Act: the “individual mandate” that all Americans are required to purchase health insurance or be fined – that is before the fine was reduced to $ 0 by Congressional Republicans in the 2017 tax bill. The challengers to the bill are backed by the Trump administration.
Of course, this is not the first time the 10 year law has been challenged. Years have passed Republican-led efforts in Congress too pick it up. And it survived the Supreme Court exam twice 2012 and 2015 (although the law was followed both times with relatively low profit margins). That may seem like a point in favor of the law, but it now hits a more conservative list of judges, including Amy Coney Barrett, who did so criticized the decisive vote by Chief Justice John Roberts As a result, the fate of the ACA is more uncertain than it seemed a few months ago.
However, if the Supreme Court dodged the ACA, it could see a steep backlash in the Public Opinion Court. The law wasn’t always popular, but it was good has become more and more popularMost Americans support key elements like protecting people with pre-existing conditions. In addition, the entire health care system has reorganized around the ACA, meaning almost everyone in the country could feel the effects if the law were crushed. And with control of the Senate in doubt, there are serious questions about Congress’s ability to quickly preserve the most popular pieces of law – let alone replace them with new, sweeping healthcare reform.
For all of these reasons and more Many legal experts think so that even with the new conservative bias of the Supreme Court, The judges will likely keep most of themif not all of the applicable law. But a lot is at stake – for the court and the country – if the majority of judges decide to break the law.
The most obvious consequence of the ACA overturning would be that more than 20 million people are alive would be seriously at risk of losing their health insuranceeither through the legally established marketplaces for the sale of private plans or through Medicaid’s expansion in many states. But there would be countless other effects too. Protection against pre-existing illnesses would not only be lost, but preventive treatment – such as flu shots, a COVID-19 vaccine and mammography screenings for women over 40 – would no longer have to be covered. Nor would health plans be required to cover so many types of care. And many young adults under the age of 26 could be removed from their parents’ health insurance plans.
One issue now on trial, however, is that an essential part of the structure of the law has changed in ways that call into question its constitutionality since 2012, when it was first ratified.
Back in 2012One of the major issues facing the Supreme Court was the legality of the “individual mandate” – a component of the ACA that required all Americans to purchase health insurance or pay a fine. In a close 5-4 vote, the judges decided that the individual mandate was permissible under the tax sovereignty of Congress. But then in 2017 The Republican-controlled Congress optimized this provisionSet the penalty for not having health insurance to $ 0.
Now the GOP-led coalition that brought the ACA back to the Supreme Court is claiming that the mandate is unconstitutional because the “tax” associated with lack of insurance does not exist – and that the mandate cannot be segregated or legally segregated The language has been “cut off” from the rest of the law, meaning the entire ACA is now unconstitutional.
This is an ambitious legal argument to say the least.
Aside from the question of the constitutionality of each mandate, some of the conservative judges may not find it particularly popular to knock down an entire law for a faulty part. Just this summer, in a 5-4 decision regarding the constitutionality of the Obama-era Consumer Financial Protection Bureau structure, Roberts summarized what he called the “fixed” doctrine of separability, Write, “[W]We try to narrow the solution to the problem by separating off all the problematic parts and leaving the rest intact. “The assumption, he explained, should, unless there is“ strong evidence ”to the contrary, be that Congress did not intend a flawed provision to doom the rest of the law. Also in their confirmation hearings in October, Barrett appeared to indicate that the individual mandate – albeit unconstitutional – wouldn’t necessarily means that the rest of the ACA would be invalid.
A counter-argument against the fall of the GOP-led coalition is that the health markets can function without the mandate. A friend of the court letter The argument put forward by a group of economists argues that, from an economic point of view, the individual mandate is not critical to the functioning of the ACA, as the law has remained fully functional even with no penalty for not buying insurance. Some health insurers meanwhile have argued that the invalidation of the entire law Together with the individual mandate, this would have a number of “serious consequences in different areas that are completely independent of the mandate”.
There are other legal arguments against the case – including the question of whether these states even have the ability bring the lawsuit primarily to court. So far, however, the lower courts have joined the opponents of the law to varying degrees. A federal district judge in Texas has denied the mandate and the rest of the law in late 2018, and an appeals court upheld this ruling in part a year later, Decision that the mandate was unconstitutional. (Beyond the mandate decision, however, it was not a clear victory for the challengers to the law. The appeals court asked the lower court to reconsider the extent to which the mandate could be separated from the ACA.)
But let’s say a majority in the Supreme Court decides that the entire ACA is unconstitutional. From a political point of view, the big question is what Congress could do to deal with the chaos that would inevitably arise. The answer is complicated, as control of the Senate is most likely hanging on two runoff elections in Georgia in January. So if the Democrats managed to win the Senate, You could try to prevent the Supreme Court by changing the penalty to a nominal amount of $ 1 or canceling the individual mandate entirely Or if the Supreme Court crushed the law with Democrats who control both Houses of Congress and the White House, they could use the decision as an excuse to push for broader health care reform. But if Republicans keep control of the Senate, none of these corrections appear to be happening, which puts the health system in real danger.
In other words, a world where the entire ACA was overturned by the end of the Supreme Court’s tenure in June seems unlikely, but it’s important to understand the risks involved in this scenario. The ACA has grown in popularity since Obama’s departure, and even a majority (66 percent) of Republicans want to maintain its protection for people with pre-existing conditions. According to a survey by the Kaiser Family Foundation in October. As I wrote earlier, the Supreme Court can suffer serious backlash if it falls too far outside the boundaries of public opinion – something Roberts seemed diligent to avoid, at least in his last term.
When the judges hear oral arguments today, they may think not only about the legal issues in the present case, but also what could happen to the court as an institution if a popular health law were changed by a handful of unelected judges in the case in the middle of a pandemic.