Yes, those are pretty big stakes. No, you haven’t heard a lot about it lately.
Partly that’s because other health care topics, like the debate over “Medicare for All,” have been in the news. And partly that’s because even conservative experts think the lawsuit’s underlying argument is ridiculous.
But in November, a federal district judge sided with the plaintiffs, declaring the Affordable Care Act was unconstitutional. It was a big victory for the 20 GOP state officials who brought the case as well as for President Donald Trump, who had the U.S. Justice Department file a brief supporting the case.
Now the case is before the U.S. 5th Circuit Court of Appeals, where a panel of three judges will hear oral arguments on Tuesday. Two of the judges are Republican appointees and have ties to the conservative Federalist Society, just like the federal district judge who ruled in favor of the case in November.
That pedigree doesn’t mean the 5th Circuit judges will also rule against the Affordable Care Act. But late last month, they made an ominous request of the parties. They asked for extra briefs on whether the Democratic officials who have taken up the law’s defense have “standing” to appear in court.
If the judges decide those Democrats don’t have the authority to defend the Affordable Care Act in court, it’s not clear who would be able to fight the lawsuit or what that would mean for the case.
But any kind of ruling against the Affordable Care Act would likely send the issue to the Supreme Court, which, in turn, would probably hand down a decision sometime near the end of its term ― in other words, late spring or early summer 2020, just months before the presidential election.
It’s difficult to exaggerate what a final ruling against the Affordable Care Act would mean, and not just for politics. Nearly 10 years after enactment and more than four years into full implementation, the Affordable Care Act has touched nearly the entire health care system.
Suddenly canceling all of its reforms could cause chaos and leave literally tens of millions of Americans newly unable to pay for their medical care.
This Legal Saga Feels Familiar
This isn’t the first time coverage for so many people is at the mercy of conservative, Republican-appointed judges.
In 2012, the Supreme Court considered and ultimately rejected a constitutional challenge to the Affordable Care Act’s “individual mandate,” the financial penalty for people who had access to insurance but didn’t buy it. In that case, a five-to-four majority led by Chief Justice John Roberts ruled that the mandate was a constitutionally permissible tax.
But five years later, Trump and his GOP allies reduced the mandate penalty to zero, effectively eliminating it, as part of their 2017 tax cut legislation. That action has thrown the Affordable Care Act back into constitutional jeopardy ― or so the plaintiffs in the latest lawsuit suggest.
As they see it, a penalty of zero cannot be a tax; that makes the mandate, whose language remains part of the Affordable Care Act statute even though it has no force, unconstitutional. And if the mandate is unconstitutional, the plaintiffs say, then the rest of the law is unconstitutional. too, because Congress in 2010 had intended for the Affordable Care Act’s interlocking pieces to work together.
The argument has many weak links, scholars have argued, but probably the weakest is the claim that possible congressional intent from 2010 matters more than what Congress did less than two years ago. “Congress told us what it wanted through its 2017 legislative actions,” a group of experts wrote in a brief they filed with the court earlier this year. “It repealed the penalty while leaving the insurance reforms in place.”
Among the scholars signing that brief were two conservatives who had helped write or promote previous challenges to the Affordable Care Act. One of them, Jonathan Adler, a Case Western law professor, has been even more blunt in interviews and in his own writing, calling the theory of the lawsuit “unmoored” and “absurd.”
The Effects Of A Ruling Would Be Devastating
Those experts aren’t the only ones weighing in on the case. Organizations representing pretty much every major stakeholder in health care ― from patient advocacy groups to physicians ― have filed briefs warning of the dire consequences if the 5th Circuit judges rule for the plaintiffs.
They aren’t overstating the case. A ruling to invalidate the Affordable Care Act would do more than end protections for people with pre-existing conditions. It would end the provision of federal subsidies for people who buy private insurance on their own, through HealthCare.gov or similar markets that several states operate. And without subsidies, those markets would collapse.
A ruling against the Affordable Care Act would also end extra federal funding that underwrites the expansion of Medicaid, which two-thirds of the states have now undertaken, so that it is available to all people below or just above the poverty line.
The Medicaid expansion is the primary reason that the number of Americans without insurance has fallen to historic lows. It’s also the single biggest reason that, in the wake of a ruling invalidating the Affordable Care Act, approximately 20 million fewer people would end up with coverage, according to projections by the nonpartisan Urban Institute.
And even that figure understates the potential effect of a ruling against the Affordable Care Act.
The law has altered the health care system in countless other ways that a court ruling could undo. These include the prohibition of annual and lifetime caps on benefits, which is something that employer insurance plans once commonly had, and requirements that restaurants provide nutrition information on menus.
The Affordable Care Act also called for adjustments in payments to hospitals and insurance companies that offer alternative coverage within Medicare. Experts who have looked at the lawsuit have said they are not even sure how the federal government would go about undoing those kinds of changes.
As Nicholas Bagley, a University of Michigan law professor who has been among the lawsuit’s loudest critics, wrote earlier this year, “The Act is now part of the plumbing of the health-care system.”
The Legal Lineup Is Unusual
One reason briefs from outside scholars and groups are important is that the Trump administration’s lawyers are arguing on the side of the plaintiffs. That’s a highly unusual move. The Justice Department’s lawyers customarily defend federal statutes, even ones that the current president doesn’t like, except in cases where a law is clearly unconstitutional ― which isn’t the case here.
The decision to side with the plaintiffs reportedly came directly from the White House, despite Trump’s repeated campaign vows to protect people with pre-existing conditions, and was controversial even within the Justice Department. Three career attorneys removed their names from the brief indicating the administration’s intentions and one of them ended up resigning after more than 20 years as a government lawyer.
When the administration announced its intent to support the lawsuit, a group of Democratic state officials led by Xavier Becerra, attorney general of California, stepped in to oppose the lawsuit. And after Democrats took control of the U.S. House early this year, one of their first moves was to pass a resolution allowing leaders to file a brief joining the defense, as they have since done.
Whether those officials can continue to defend the law in court is the issue that prompted the late July request for more briefs, rattling defenders of the law who think the standing issue is as straightforward as the case itself. (To establish standing, a party has to show it would suffer harm from a ruling, and there’s no question that all states would suffer harm, starting with the massive reduction in federal spending on health insurance for their residents.)
The worries may be unnecessary. The request for briefs could be nothing more than due diligence from some judges who care about legal procedure. But, given the history of the health care law, the Trump administration’s decision to support the lawsuit and the initial ruling in its favor, it seems entirely possible that this unserious legal argument is about to get very serious consideration ― not for the first time and maybe not for the last.