Many of us thought that after the last challenge to the Affordable Care Act was defeated, it would finally just be accepted as the law of the land. President Trump said as much after his republican cohorts in congress failed to repeal it and failed to construct a suitable template for a replacement. But that should have been one of all of our strongest indicators that it was not going to be allowed to exist and that they would not simply seek to plug the holes and build on it, Donald Trump’s words usually only carry the impact of a future assurance that the opposite will eventually happen. Therefore, when he announced that the ACA was the law of the land, we should have been expecting it to be challenged more severely. Well, that challenge is here, and it looks to be the most significant challenge to date with a very high chance of having the entire law thrown out for being unconstitutional. In the episode of Lessons from the Screen, we will be looking at the current challenge to the Affordable Care Act.
Even if you have been living under a rock you know what the Affordable Care Act is; provided you have been in America for the past 10 years roughly. You may not know it as the Affordable Care Act but most everyone recognizes the term ObamaCare. The full name of the Law is the Patient Protection and Affordable Care Act (PPACA) and President Obama signed it into law in March of 2010. It was a pretty big deal at the time as it was the largest overhaul of the American Health Care System over 40 years. It remains a pretty big deal even now nearly ten years after passage because it’s opponents much like the opponents of Roe V. Wade seemingly have vowed not to rest until the law is thrown out.
There were many concerns with people being able to stay with the plans they loved, the ability of the government to handle its new role in the Healthcare Industry, and the premiums rising with insurance companies being forced to insure people that would have been excluded previously. However, the single biggest issue over time became the individual mandate. The Individual Mandate was a section of the ACA that called for every adult American Citizen to have healthcare or to pay a fine during tax time. Many conservatives and liberals alike did not enjoy being forced into what is viewed as a private-sector industry. Nevertheless, the Individual Mandate as argued by supporters of the ACA was the lynchpin that made the law function and it ensured that everyone had health insurance all the time and not simply when they needed it. If everyone has insurance all the time then the insurance companies have enough money to support those needy clients because they have income from the clients fortunate enough to have good health. If not for that individual mandate, the entire thing would collapse, something that both sides seemed to agree on.
For the remaining 6 years of Obama’s presidency, after republicans took control of the House of Representatives, more than 60 votes were held to defund, overturn, or block the entire law or pieces of it. Many of those votes successfully passed the house where they were largely political messaging bills because there was no chance the Democratic Senate was going to take any of those bills up, and they did not. But these were not all blanket votes to stop the law from becoming active. There were attempts to block key pieces, remove funding and other resources for implementation, and to attach amendments to government spending bills, which are required to maintain a functioning government. There was a government shutdown over the law and that energy has not dissipated over the years, if anything, with the election of Donald Trump in 2016 opponents of the ACA much like opponents of abortion laws were reinvigorated.
But there was a block in the plan, President Trump ran on a platform with a lot of his republican cohort that was focused on a repeal and replace policy, they could easily repeal the ACA but replacing it was an entirely different matter. For months on end, they sat at the table trying to find a way to replace what had become the framework of Americas Health Care System. They had spent years opposing the ACA, but no one seems to have put much thought into making something that could actually replace it. This was probably because there were more worried about scoring political points from opposing the ACA than they were about actually replacing it with something better. After months of failure, President Trump decided to redirect his republican party to something more manageable, taxes.
In December of 2017, a republican congress passed the Tax Cuts and Jobs Act, which was the largest change to the US Tax Code in Thirty years. While we were all ranting and raving about how much of a giveaway the reform was to the wealthy and large corporations, the quiet by-line was that the individual mandate had been reduced to zero. This was something that many people actually liked about the tax law regardless of how they felt about everything else. This was important because as mentioned earlier the Individual Mandate was a hot point of contention. Many states took the federal government to court asserting that the ACA was a violation of the constitution and should be overturned based on the individual mandate requiring citizens to participate in a private sector industry. Those challenges were rejected with the courts making the determination that the individual mandate was a tax and congress absolutely had the power under the constitution to create new taxes.
But with the penalty set to zero, it’s not a penalty, it’s not a tax. Eighteen states backed by the Trump Administration took the ACA back to court asserting that if the individual mandate is not a tax, then it is unconstitutional, and since the heart of the ACA (the individual mandate) is unconstitutional then the entirety of the ACA is unconstitutional. This is a position that was agreed to by Judge O’Connor in Texas who ruled that all of the ACA was unconstitutional in December of 2018. Lawyers for the House of Representatives and some Democratic States stepped in to defend the ACA and appeal the decision, which leads us to the present.
In early July, a 3-judge panel of the Fifth Circuit Court of Appeals held a hearing in Texas v. United States. But instead of this push being rejected for things like severability (the ability of a law to stand even though a piece of it is removed), Standing (in order to have standing to sue you have to have been injured), or precedent (the court has rejected other challenges to the ACA that were a lot stronger legally speaking) the court seemed to be leaning to the side of Judge O’Connor with the questions they were asking. Leading many to believe that this may very well go to the Supreme Court, and with the Supreme Court being as conservative as it is, many believe that we could be looking at the end of the ACA.
For more of my thoughts on what this could mean. Tune into the podcast.
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is a lover of learning and analyzer of anything that can be analyzed, even if it probably shouldn't be.