Judge Amy Coney Barrett, Severability and the Affordable Care Act
Judge Barrett is seeking to become Justice Barrett of the Supreme Court. Senator Lindsey Graham is the chair of the Senate Judiciary Committee and wants to stay that way. Donald Trump is President of the United States and is desperate to avoid defeat in November.
The nation is in the midst of a pandemic where health coverage is more important than ever. Large majorities support the Affordable Care Act and disapprove of President Trump’s handling of the pandemic and health coverage generally.
This brings us to the Affordable Care Act. It expanded Medicaid for the working poor and improved the program’s eligibility rules and application processes. It created the Exchanges with premium assistance and cost sharing reductions for those purchasing coverage in the individual market. It guaranteed issuance of coverage and affordability of coverage for those with pre-existing conditions. It allowed adult children up to age 26 to be covered through their parent’s plans. It required employers with more than 50 employees to cover their full time workers. It assured coverage of mental health, prescription drugs, and preventive care (with no copays). It reformed the ways Medicare pays for care from hospitals, doctors, prescription drugs and many other services. It also included improvements in coverage for many other populations, including seniors, children, Native Americans and Veterans. That’s just the highlights; the ACA was far-reaching and is now deeply imbedded in nearly every aspect of America’s health system.
Texas and 17 other states are trying to have the ACA declared unconstitutional and struck down; California and most of the other states are defending it; the Trump Administration has joined the plaintiffs seeking to strike down the ACA. It is pending in the Supreme Court for oral argument the week after Election Day. California v. Texas https://www.supremecourt.gov/docket/docketfiles/html/public/19-840.html Their theory involves the “individual mandate” or shared responsibility (the actual statutory language), and the fact that Congress zeroed out the tax penalty for not having health coverage in the tax reforms of 2017.
When the ACA passed Congress back in 2010, its goal was coverage for all Americans for a basic set of benefits. Florida, Texas and other conservative states challenged its constitutionality on many grounds – including the expansion of Medicaid in all 50 states and the shared responsibility to have coverage except for financial hardship or religious beliefs. NFIB v. Sebelius https://www.oyez.org/cases/2011/11-393 The Supreme Court (Chief Justice Roberts writing for the majority) ruled that the Medicaid expansion was optional with the states and the shared responsibility clause (individual mandate) was a proper exercise of Congress’ taxing authority but not of its Commerce Clause jurisdiction. The four dissenting justices argued that the entire Act should be struck down, and that any constitutional infirmity invalidated the whole Act, saying it was all of one piece and not “severable”. There are still twelve states (primarily in the South) that have not yet adopted the Medicaid expansion, among them Texas, Georgia and Florida; voter initiatives supporting the Medicaid expansion have been steadily approved; more are in the offing. https://www.kff.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisions-interactive-map/
Among Congress’ tax reforms of 2017, the tax penalties associated with the ACA were zeroed out. So Texas and Florida forum-shopped for a friendly federal District Court judge in Texas who held that the zeroing out of the tax penalty made the entire ACA unconstitutional, as he could not figure out how to sever the one clause (individual mandate/ shared responsibility) he found was constitutionally infirm from the rest of the ACA. The Fifth Circuit in a 2-1 decision found the shared responsibility clause (now without a tax penalty) was unconstitutional and the trial court should decide which provisions were severable and which would stand, based on Congressional intent in the 2017 tax reforms; the dissent questioned among other things whether any of the plaintiffs had standing since there was no tax penalty for non-compliance. http://www.ca5.uscourts.gov/opinions/pub/19/19-10011-CV0.pdf
The Supreme Court is now poised to hear the case, the week after Election Day. Justices Alito and Thomas from the original dissenters in NFIB v Sebelius remain on the court, whether they have changed their opinions about the ACA based on its successes over the past ten years remains to be seen. Justices Breyer, Kagan, Sotomayor and Chief Justice Roberts, part of the original majority in NFIB v. Sebelius also remain on the court. Two new, conservative Justices Kavanagh and Gorsuch have joined the court, and their views are unknown. The addition of a new conservative Justice Amy Coney Barrett would add yet another unknown to the equation. There could potentially be 5 votes to strike down the ACA in its entirety, and that is why President Trump, Leader McConnell and Senator Graham may be in such a mad, headlong dash to confirm Judge Barrett. This would throw the nation’s health system into utter chaos. This is a culmination of a decade of Republican efforts to dismantle the ACA with a Hail Mary pass to the Supreme Court when their hold on the Senate and the Presidency is in some degree of jeopardy. There are potentially 7 votes to preserve and maintain the ACA, but for severing the shared responsibility clause, which is now of no effect. Senator Graham threw Judge Barrett the “severability” lifeline during her questioning by the Senate Judiciary Committee, and she appeared to embrace it.
Personally, I’d like to see the next Congress combine coverage with a tax — i.e. you pay your tax and you get your choice of Exchange market health coverage offerings; this could include a Medicare or Medicaid buy in option. That would save the dithering of judges and state legislative bodies seeking to undermine the ACA.
Prepared by: Lucien Wulsin
Dated: 10/15/20