Commentary

One Texas judge says the ACA is unconstitutional: What you need to know

Before anyone gets too panicked about the weekend ruling by a Texas federal judge named Reed O’Connor that the Affordable Care Act is unconstitutional, they should check out an article from Vox.com by Sarah Kiff, entitled Federal court rules Obamacare unconstitutional — but the law stands for now.” This is from the article:

O’Connor’s decision will almost certainly be appealed up to the Fifth Circuit Court of Appeals, which could ultimately send the case to the Supreme Court. It is not entirely clear yet what the ruling will mean for current Obamacare enrollees — or those currently signing up, as the program’s open enrollment period ends at midnight on Saturday.

Legal experts on the left and the right believe the arguments being made by Republican-led states are, on their face, uncompelling and unlikely to succeed in overturning the Affordable Care Act.

At the same time, there is a history of lawsuits that most legal experts thought were unpersuasive nonetheless putting ACA in mortal danger — first the lawsuit against the individual mandate and then the challenge to insurance subsidies.

With this first victory, it becomes a more real possibility that this lawsuit could end up in that category.

After explaining who the parties are to the litigation (the Trump administration is not defending the law, and it’s a group of state attorney general who are handling that) Kiff concludes this way:

If the Trump administration’s argument were to prevail, insurers could once again be able to flat-out deny Americans insurance based on their health status. No amount of federal subsidies would protect them. Medicaid expansion would remain, but the private insurance market would no longer guarantee coverage to every American.

Because the Trump administration is not defending the Affordable Care Act in this case, a group of pro-Obamacare attorneys general from 16 states and the District of Columbia swooped in to take over the case.

They argue that Congress clearly understood what it was doing when it reduced the individual mandate penalty to zero dollars. Their intent was to get rid of the penalty but leave the rest of the law standing, and that the courts ought to respect that.

Most legal experts, it’s worth noting, are skeptical of the arguments made in this case — even those that have worked on other legal challenges to the Affordable Care Act. They say that it willfully ignores the intent of the 2017 Congress, which zeroed out the individual mandate penalty without touching the rest of the Affordable Care Act.

”They are asking the court to evaluate the current law on the basis of what the law used to be,” Jonathan Adler, a law professor at Case Western University who supported previous Obamacare challenges, has told Vox. “That whole analysis just doesn’t apply or work anymore.”

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