The ACA is in court again today

This afternoon, the 5th Circuit Court of Appeals will be hearing oral arguments as to whether or not the ACA is unconstitutional.  The case is Texas vs. Azar.  The plaintiff states have argued and won in district court that the ACA is unconstitutional because the individual mandate penalty has been lowered to zero and therefore it is not a tax.

Yeah, this is a bananapants theory even if everyone assumes standing. The plaintiff states can’t show injury and the individual plaintiffs are only alleging psychic injury that they don’t want to be admonished to buy insurance even if there is no fiscal implications of either a buy or no buy decision. Assuming standing is not contested, this is a simple severability case. Congress knows how to repeal a law. The Congress that moved the mandate penalty from 2.5% of income to 0% and $0 of income spent several months trying to repeal the law and failing. No one who voted to repeal the individual mandate thought they were repealing the ACA. The courts assume that when Congress wants to do something, they will make it abundantly clear both within the text of the law and usually in supporting documentation. Congress wanted to get rid of the mandate costs and they had the votes to do so and that was it. The rest of the law was left intact.

Under the district court judge’s ruling and under the argument advanced by both the plaintiff states and the Trump Justice Department, the entire ACA has to go which means the exchanges would have to go, it means Medicaid expansion would have to go, it means Medicare Part D gets more expensive, it means all of the delivery system reform efforts would have to go, it means calorie labeling on fast food menus would have to go. It means the taxes on upper income Americans would go.

This is banana-pants, but this is the argument that will be made this afternoon.






47 replies
  1. 1
    JPL says:

    I thought that trump was concerned about preexisting conditions. hmm

  2. 2
    burnspbesq says:

    Because standing is jurisdictional, it can be raised at any stage of the proceeding, either by a party or by the court. That part of the case isn’t over.

  3. 3
    burnspbesq says:

    @JPL:

    I thought that trump was concerned about preexisting conditions. hmm

    Only for straight white Evangelical men.

  4. 4
    Betty Cracker says:

    @JPL: Yep, preexisting conditions AND the provision that adult children can stay on their parents’ policies — repeal of the ACA would presumably invalidate those protections for everyone, not just people who purchase coverage on the exchanges.

    Does anyone know what the effect of repealing the mandate has been, or is it too soon to tell? I figured at least some folks would drop their coverage and resume it only if they became ill or had an accident that required significant follow-up care, thus gaming the system against the insurance companies. We’ve been told for decades this is why people can only change coverage at enrollment time or during a qualifying event, etc. (Sorry if this was covered in an earlier post and I missed it.)

  5. 5
    sdhays says:

    @JPL: @JPL: Common misconception. People thought he meant he wanted to “protect pre-existing conditions coverage”, but he really said that he wanted to “protect pre-existing conditions”.

  6. 6
    Eolirin says:

    I cannot think of anything that would more effectively boost the Democrats chances of winning the Senate in addition to the white house than the ACA getting repealed this messily. So I’m pretty sure Roberts at minimum isn’t going to do the crazy thing and strike the law down.

    It’s insane enough though that the DoJ is supporting this shit.

  7. 7
    cmorenc says:

    We do alas have four banana pants members of SCOTUS – question is, are there five?

  8. 8

    @Betty Cracker: Right now, the evidence is not there yet to say much about the lack of a mandate.

    I think it matters as we saw re-enrollment modestly increase in 2019 vs 2018 (a lot of that is due to bettter subsidized pricing IMO) while new enrollment cratered on HC.Gov

    I think the mandate was a motivator for people who weren’t already in the Exchange system to get into the system while pricing is a strong retention element for people already in.

    I know there are a few studies being conducted at the moment. I want to do a state line discontinuity study to take advantage of the states that have passed their own individual mandate vs those that have not but I don’t have the time/funding/skills to do that right at the moment.

  9. 9

    @cmorenc: Given that the majority that said King v Burwell (The CARD SAID MOOPS) case is still all on the court; I don’t think there are five.

  10. 10
    p.a. says:

    Thank dog Kynect etc are TOTALLY NOT OBUMMERCARE and will be totally freed of gubmint interference to usher in the new healthcare Jerusalem, amirite?

  11. 11
    rikyrah says:

    The Demons continue to work to strip healthcare away from MILLIONS.

  12. 12
    Betty Cracker says:

    @David Anderson: Thanks! It’ll be interesting to see how it shakes out longer term.

  13. 13
    tobie says:

    This is the 5th Circuit, which is known more for its fealty to Republican priorities than for its commitment to constitutional principles. I’m hoping for the best in this crazy suit but preparing for the worst.

  14. 14
    Bobby Thomson says:

    Texas, dude.

  15. 15
    Steve in the ATL says:

    @burnspbesq:

    Only for straight white Evangelical men.

    Well, *nominally* straight

  16. 16
    Another Scott says:

    Virginia AG Mark Herring press release at BlueVirginia:

    […]

    In March of this year, Attorney General Herring and the coalition of state attorneys general filed their opening brief arguing that the plaintiffs do not have standing to challenge the minimum coverage provision, because the individual plaintiffs are not injured by a provision that now offers a lawful choice between buying insurance and paying a zero-dollar tax. The attorneys general further argue that the state plaintiffs also lack standing, because there is no evidence that the amended provision will require them to spend more money. Lastly, the District Court wrongly concluded that the minimum coverage provision was unconstitutional, and even if it were, there would be no legal basis for also declaring the rest of the ACA invalid—including its provisions expanding Medicaid, reforming Medicare, and providing protections to individuals with preexisting health conditions.

    (Whew! That’s a scary URL. Here’s hoping FYWP doesn’t choke on it…)

    Fingers crossed.

    [eta:] That scary link is to another Herring press release. The actual filing seems to be here (63 page .pdf)

    Cheers,
    Scott.

  17. 17
    Steeplejack says:

    @Another Scott:

    Link worked fine for me. But . . .

    Pro tip: Instead of taking the source link from a search-engine hit or some aggregator site, it’s better to click through that link to the referenced site. Then you get the original, usually much simpler, more readable link—in this case:

    https://www.oag.state.va.us/media-center/news-releases/1416-march-25-2019-herring-continues-to-defend-the-affordable-care-act-in-court?highlight=WyJhY2EiLCJhY2EncyJd

  18. 18
    Greg says:

    I almost would not mind if they strike down the ACA. Let Americans wake up on Jan. 1, 2020 and find that their protections for pre-existing conditions are gone, their life time caps are back, their Medicare expansion is gone, their state based exchanges are gone, they can’t get new insurance due to their pre-existing conditions. Let Trump and McConnell explain why they backed the lawsuit that took all of that away. Let them propose a plan that will undo the damage.

  19. 19
    kindness says:

    This is the 5th Circuit we’re talking. The ACA will lose in that courtroom because that is what the Federalist Society would want. Now whether or not Chief Justice Roberts cares about his reputation…..I believe he is situational in that respect. Some things he’ll happily toss overboard and not care about his legacy. This one though….not sure. All I know is that it sucks having to depend upon Roberts to save you.

  20. 20
    Gin & Tonic says:

    @Greg: Heighten the contradictions, as it were, right?

  21. 21
    waspuppet says:

    This would be remarkable in that no one wants this to happen. Most Republicans don’t even want it to happen — they’d rather complain about Obamacare and/or hope no one brings up how vehemently they were against it. This is almost literally exclusively the crusade of the senile racist game-show host in the White House and his fellow Fox News shut-ins against the fact that the black guy did something.

  22. 22
    Ruckus says:

    @Greg:
    In a game world, sure. But you and I both know the human costs of playing the game with real lives, even if the republicans only think they are worth 3/5 of a real life. Or less.

  23. 23
    Another Scott says:

    @Greg: IANAL, still, but how about the following thought experiment:

    5th Circuit strikes down the PPACA.

    States request a stay pending appeal to the SCOTUS. Stay is granted.

    SCOTUS agrees with 5th Circuit, or decides not to take the case. But issues some “only in this case, not a precedent” statement that “because of the disruption to society” the stay will remain in place until new legislation replaces the PPACA.

    It seems like the Teabaggers would love to be able to yell from the rooftops, “We did it! We killed the evil Obamacare!!” But if a stay remains in place, “pending new legislation from Congress” or some such, the there wouldn’t be much if any political cost to them for ruining things for:

    – 133 million Americans, including 17 million kids, with preexisting health conditions;
    – Young adults under 26 years of age, who are covered under a parent’s health plan;
    – More than 12 million Americans who received coverage through Medicaid expansion;
    – 12 million seniors who receive a Medicare benefit to afford prescription drugs; and
    – Working families who rely on tax credits and employer-sponsored plans to afford insurance.

    Nothing would be better for them to be able to eat their cake and have it too, amirite?

    It would be very weird for something like this to happen, and maybe it’s impossible, but I’m sure Donnie and the Teabaggers dream of such things.

    Cheers,
    Scott.

  24. 24

    @Greg: NOPE, I’m not playing poli-sci games (esp those where we know that the evidence shows Americans suck at correctly attributing blame and reward) with 30 million + lives.

    That is a moral judgement and not a technocratic analysis from me.

  25. 25
    hedgehog the occasional commenter says:

    @David Anderson: Thank you, David.

  26. 26
    Yutsano says:

    @Another Scott: What if no new legislation comes down? Can a stay exist indefinitely?

    I have no idea as I’m just a simple tax pony.

  27. 27
    Alternative Fax, a hip hop artist from Idaho says:

    @Steve in the ATL: Oddly, they pass so successfully.

  28. 28
    Mnemosyne says:

    @Greg:

    Given how many people on this very website are only alive today because they were able to buy affordable health insurance after PPACA was passed, I invite you to go fuck yourself.

  29. 29
    blackcatsrule says:

    @Steeplejack: By the way thanks for fixing my link the other day. Kisses to the housecat!

  30. 30
    Steeplejack says:

    @blackcatsrule:

    Thanks!

    [Housecat opens one eye. “Whut?”]

  31. 31
    Brachiator says:

    …the entire ACA has to go which means the exchanges would have to go, it means Medicaid expansion would have to go, it means Medicare Part D gets more expensive

    It’s “ACA: Infinity War.” With a snap of the finger, insurance coverage for millions of people would suddenly disappear.

  32. 32
    Another Scott says:

    @Yutsano: Dunno.

    But I’m reminded of the Flores settlement consent decree. Judges (in the Flores case, the United States District Court for the Central District of California in Los Angeles) can keep an eye on a case to make sure it’s properly treated for decades. (Presumably it would be a district court, not the Circuit court or SCOTUS, in this hypothetical PPACA situation.)

    To be clear, I don’t think that Roberts would punt like this (i.e. kick it back down to the lower court to keep an eye on it until Congress passes some new PPACA “replacement”), but if he does strike the PPACA down (and it wouldn’t seem likely that he would given that he didn’t in earlier opportunities) then he would seemingly want some sort of backstop, and not just trash the law and turn the clock back to pre-PPACA instantly.

    We’ll see. My $0.02.

    Cheers,
    Scott.

  33. 33
    TenguPhule says:

    @JPL:

    I thought that trump was concerned about preexisting conditions.

    Life is a preexisting condition.

  34. 34
    TenguPhule says:

    The courts assume that when Congress wants to do something, they will make it abundantly clear both within the text of the law and usually in supporting documentation.

    I found the problem in your perfectly logical argument. Five corrupt justices on the Supreme Court don’t give a rat’s ass about anything resembling logic or common sense.

  35. 35
    Brachiator says:

    @David Anderson:

    These were the conclusions of an October 2018 Kaiser Foundation Study on the impact of repeal of the individual mandate on 2019 premiums

    Although 2019 premiums for plans in the ACA marketplaces are flat or falling in many places, they would be substantially lower still if not for several key policy and legislative changes. …

    … we found that 2019 premiums will be an average of 6% higher, as a direct result of individual mandate repeal and expansion of more loosely regulated plans, than would otherwise be the case.

    Adding the impact from the loss of cost-sharing reduction payments – which drove up silver premiums by an average of 10% according to the Congressional Budget Office – to the impact from individual mandate penalty repeal and expansion of more loosely regulated plans, this analysis suggests on-exchange benchmark silver premiums will be about 16% higher in 2019 than would otherwise be the case.

    The major legislative changes they looked at:

    Congress reduced the individual mandate penalty to $0 effective in 2019 as part of tax reform legislation passed last December.

    Soon thereafter, the Trump administration also announced new rules that will allow more loosely regulated plans – short-term limited duration (STLD) plans and association health plans (AHPs) – to proliferate on the individual market in competition with ACA-compliant coverage. These more loosely regulated plans will serve as a more affordable option for some people who are not eligible for the ACA’s premium tax credits. However, particularly in the case of short-term plans, this lower-cost coverage is generally unavailable to people with pre-existing conditions and the plans often exclude coverage for certain services.

    It’s weird. The short term plans are like “smoke and mirrors” insurance. They presume that consumers are suckers who would prefer plans that almost do nothing, just to save a buck.

    Link:

    https://www.kff.org/health-costs/issue-brief/how-repeal-of-the-individual-mandate-and-expansion-of-loosely-regulated-plans-are-affecting-2019-premiums/

  36. 36
    LongHairedWeirdo says:

    Yeah, this is a bananapants theory even if everyone assumes standing. The plaintiff states can’t show injury and the individual plaintiffs are only alleging psychic injury that they don’t want to be admonished to buy insurance even if there is no fiscal implications of either a buy or no buy decision. Assuming standing is not contested, this is a simple severability case. Congress knows how to repeal a law. The Congress that moved the mandate penalty from 2.5% of income to 0% and $0 of income spent several months trying to repeal the law and failing. No one who voted to repeal the individual mandate thought they were repealing the ACA. The courts assume that when Congress wants to do something, they will make it abundantly clear both within the text of the law and usually in supporting documentation. Congress wanted to get rid of the mandate costs and they had the votes to do so and that was it. The rest of the law was left intact.

    Actually, is it true that the Federalist Society started with the thought “my god, sometimes people we assumed were reliable partisan votes turned out not to be”? Because if so, I’d say that this is strong evidence that the Federalist Society is a conspiracy to rig the US court system.

    Seriously, think about how many total-BS (and the B sometimes stands for “bat”) decisions we’ve seen.
    “The ACA was constitutional when there was a penalty > 0 but now that it’s gone, it’s a violation of the Constitution because.”
    “If you can drive the truck, with its trailer, you can’t abandon your load, right? Well, he can drive the truck WITHOUT its trailer, and, did so, because otherwise he risked dying. But it says if you can operate the truck, you can’t abandon the load, so he should have stayed, and risked death, or accepted he was going to get fired for driving to safety.”
    “The VRA has been working really well, and Congress overwhelmingly voted in favor of it, but this pre-clearance stuff really hurts Republicans is a really bad idea and *TOTALLY* unnecessary, in my opinion WHICH MEANS PRACTICALLY IN THE FARGING CONSTITUTION BITCHEZ!!!!!!!!! which, oh, heh, as CHIEF JUSTICE OF THE SUPREME COURT IS BINDING NO MATTER HOW STUPID! Oh, wow, look at all those voting restrictions going into place.”

  37. 37
    janesays says:

    @Betty Cracker: You’re still only allowed to enroll in Obamacare exchange plans for a short specific period of time at the end of each year, with a few exceptions for certain qualifying events (ie getting married, moving to a different state, changing employers). So if you get cancer in January and you didn’t sign up for a plan in December, you’re shit out of luck. Getting sick isn’t a qualifying event that would allow you to enroll outside the normal enrollment period, as far as I know. The person who gets cancer in January would be allowed to sign up for a plan in the next enrollment period, but they would still have to wait 11 months before their cancer treatments would be covered by insurance. Not a smart risk to take if you can avoid it.

  38. 38
    janesays says:

    @Greg: Just going out on a limb here, but I’m guessing you’re a generally healthy person who probably has pretty good employer-provided health insurance, and thus the destruction of the ACA would have very little impact on your personally, right?

  39. 39
    janesays says:

    @TenguPhule: Roberts sided with the good guys in King v. Burwell. He had his chance to be the justice that killed Obamacare once already, and he didn’t take it. He’s not a good person, but he’s also not a complete moron. He knows that if he casts the critical fifth vote that causes tens of millions to lose their health insurance, that’s a permanent stain on his court’s legacy that will follow him to his grave.

  40. 40
    Greg says:

    @Another Scott: As I said, “almost”. However, maybe the states say “Fine, you want this, we are done defending the law, now fix the problem”. But, again, I am not one to wish that level of chaos on innocent people. Which is why Team D often loses. We care if the hostage dies.

  41. 41
    Greg says:

    @David Anderson: I do not wish the chaos that would result from the sudden loss of the ACA. I don’t want to see the carnage that would result. And there is no “but”.

  42. 42
    Greg says:

    @janesays: Correct, and I did preface it with “almost”. I do not wish to see the carnage that would result from the complete overturning of the ACA.

  43. 43
    Greg says:

    @Mnemosyne: I am not advocating for the end of the ACA. I do not wish to see it overturned. I do not want to see anyone lose their healthcare. There is no “but”.

  44. 44

    @LongHairedWeirdo: You left out “The card says STATE’S, not STATES, or
    even STATES’, whatever ipso fatso suck it libz”.

  45. 45
    TenguPhule says:

    The two Republican-appointed judges on the three-judge panel strongly suggested that Congress, by eliminating the individual penalty for not having health insurance under the law, had jeopardized the basis for the entire law under the Supreme Court’s 2012 ruling.

    Apparently Bananapants is now the American legal standard.

  46. 46
    Matt McIrvin says:

    @Eolirin: If they’ve got enough sympathetic judges that “we can do whatever we want” is the new legal standard, then there’s no way to take the Senate either, because they can just void every Democrat’s election and say the First Amendment means “dibs, Republicans win, also buy me a pony” or any damn thing they want. All bets are off.

  47. 47
    Kenneth Krasity says:

    Per WaPo: Trump attorney ‘Flentje contended that if the 5th Circuit agrees with the lower court that the entire ACA is unconstitutional, the only states that would be affected are Texas and the 17 GOP-led states that have joined with it. He said the legal remedy for those states would involve only the parts of the law that have harmed them. Asked by Elrod to elaborate, Flentje did not. “The issue is complicated and would need to be sorted out,” he said.”‘

    So, 5th circuit kicks case back down to trail court for further consideration of the standing issues and remedy issue, saying that is needed in part to get an additional year of data on whether the ‘mandate’ is in fact essential as Congress (arguably) assumed and the trial court determined. Delay pushes decision past the 2020 election and adds a year in which a Dem SCOTUS judge can be replaced with a GOP judge.

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