ACA Battle Continues, States and Feds File Supreme Court Briefs

May 07, 2020 - The coalition of Democrat states led by California and the House of Representatives filed their briefs in defense of the Affordable Care Act (ACA) just ahead of the May 6 deadline, while the coalition of Republican states led by Texas and the White House left their brief unchanged, according to the Supreme Court docket.

“There is no need in this case for the judicial branch to reach the question of remedy at all,” the Democrat states—or the “petitioners”—argued. “But even if there were, the only remedy that would respect congressional intent would be an order making the minimum coverage provision unenforceable while leaving the rest of the Affordable Care Act in place.”

The court case revolves around three questions:

• Do all parties have standing, or in other words they have the right to be in court to represent their argument?
• Is the individual mandate constitutional?
• Is the individual mandate severable from the rest of the Affordable Care Act, or does the law fall with it?

While the Fifth Circuit decided its answer to the second question, finding the individual mandate to be unconstitutional, the petitioners voiced their disagreement with the conclusion.

Whereas the Fifth Circuit deemed that their ruling required a re-evaluation of the entire ACA in light of the individual mandate’s unconstitutionality, the petitioners argued that no re-evaluation is necessary and that the case can proceed straight to the Supreme Court.

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“Any question of severability in this case requires no extended analysis. Severability turns on the intent of Congress, and here Congress eliminated the minimum coverage provision’s ‘only enforcement mechanism but left the rest of the Affordable Care Act in place,’” the state petitioners’ brief explained, quoting the dissenting opinion in the Fifth Circuit’s decision.

“If that amendment somehow introduced a constitutional defect, then it is plain that Congress would have wanted the remainder of the Act to stand without an enforceable requirement to maintain coverage— because that is precisely the arrangement that Congress itself created.”

Moreover, the petitioners found that their opponents had not proven that the individual mandate or the ACA injured them.

The House of Representatives agreed. The individual mandate was always a choice, they argued.

Before the individual mandate was zeroed out, the opponents had a choice between getting health insurance or paying a tax. After it was zeroed out, the opponents had a choice between getting health insurance or not getting health insurance. Thus, any injury that the plaintiffs suffered was, according to the House of Representatives, “self-inflicted harm.”

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The coalition of Republican states—the “opposition”—argued that, even in light of the Fifth Circuit Court of Appeals decision, the case was not viable for the Supreme Court’s review.

When the Fifth Circuit deemed the individual mandate invalid, it rightly sent the case back to the district court to determine the implications, the opposition stated. The Supreme Court does not have the authority to rule on the law’s validity without knowing these implications and the district court’s proposed remedy.

The opposition argued that the petitioners’ “lawful choice” dichotomy—that the individual mandate presented Americans with the decision of either purchasing health insurance or paying the tax and was not, in fact, injurious—takes the law out of context.

The lawsuit from which that dichotomy is cited took place in 2012 before the individual mandate ever went into effect and before the tax had been zeroed out. The opposition takes this to mean that the “lawful choice” applied before the tax was zeroed out but does not necessarily apply now that it is zeroed out.

The opposition rejected the idea that the Fifth Circuit decision demanded immediate review due to the gravity of the situation.

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“This Court grants certiorari ‘in cases of peculiar gravity and general importance, or in order to secure uniformity of decision’—not to correct errors, no matter how significant the general subject matter,” the opposition brief stated, quoting a previous case.

Some experts have found that the ongoing legal challenges to the Affordable Care Act present some uncertainty for Medicaid programs in Medicaid expansion states.

Some states with Medicaid expansion see nearly 40 percent of their funds coming from the federal government due to the ACA, according to the Brookings Institute. The court case puts that funding in jeopardy and could destabilize state spending as they have to reorient their budgets if the federal government withdraws that funding.

Payers have only recently started to surge into the federal and state health insurance marketplace which the ACA established. The long lag in entry was largely attributable to uncertainty over the law’s future.

The petitioners had demanded the review, in part, for the sake of providing the healthcare community and the American public with more certainty. However, the opposition argued that the ACA is and has been under legislative attack on various points. Its uncertain position is nothing new, the opposition said.

Both sides’ fuller arguments are available to the public on the Supreme Court’s website.

The Democrats’ briefs come after the Supreme Court has agreed to review the ACA’s constitutionality. The case is expected to be decided in 2021.