Roundtable #2 | The Affordable Care Act: Implementation, Challenges, and its Future
Healthcare has long been a contentious issue in American law. Questions concerning jurisdiction, who bears the burden of insurance, and issues within it ought to be handled (if at all) have plagued the American public consciousness for decades.
Everything changed, however, with the passage of the Affordable Care Act (ACA). The ACA was a carefully negotiated, bipartisan solution to deficiencies in the then current system which revolutionized health care as we know it. Changes to the status quo, however, inevitably lead to resistance, and numerous legal challenges were brought against the ACA, most famously National Federation of Independent Businesses v. Sebelius. The legal battle continues even today, with Texas v. United States and numerous actions performed by the Trump Administration.
In this Roundtable Discussion, we will examine the legal history of the Affordable Care Act, then contemporary legal challenges to its passage, and its potential future in the face of continued Republican backlash.
Executive Editor Online
Abigail Hickman
The Origins of the Affordable Care Act and Subsequent Challenges
In 2010, the Affordable Care Act (ACA), otherwise known as ObamaCare, was signed into law by President Barack Obama. The landmark healthcare legislation made it illegal to deny people coverage because of pre-existing conditions, allowed people to stay on their parents’ plans until they were twenty-six, provided free preventive services, and expanded coverage to tens of millions of Americans by subsidizing health insurance costs, among other things. [1] The Affordable Care Act also implemented an individual mandate, which required that most Americans obtain (and maintain) health insurance or pay a penalty. Despite being a legislative triumph, it was eminently clear from the outset of its passage that it was going to be challenged in the courts, although there was a wealth of bipartisan support and compromise. Challenges were ultimately levied against the ACA on the basis of its principal justification in the Commerce Clause of Article I of the Constitution. [3]
The legislation claimed that the individual mandate substantially affects interstate commerce, citing several effects on the national economy. For instance, national health spending in 2009 accounted for 17.6 percent of the national economy ($2.5 trillion), with an expected 88 percent increase ($4.7 trillion) to 2019. [4] Further, uncompensated care for the uninsured cost families $43 billion in 2008 because health care providers pass on the cost to private insurers who raise premiums for families in return. The mandate would lower health insurance premiums across the board. [5] Moreover, the Supreme Court ruled in United States v. South-Eastern Underwriters Association (1944) that insurance is interstate commerce subject to federal regulation through the Commerce Clause. [6]
The Commerce Clause of Article I of the Constitution authorizes Congress to “regulate Commerce… among the several States.”[7] A legal history of broad interpretations gave Congress almost unlimited scope in applying the Commerce Clause. For example, after President Franklin D. Roosevelt packed the Supreme Court to pass New Deal legislation, it upheld in Wickard v. Filburn (1942) the congressional power to regulate the amount of wheat a farmer could grow, even if the wheat was to be used, not for commercial sales, but for feeding his own livestock. [8] Despite this, for much of the Commerce Clause's recent history, the Supreme Court largely ignored the Commerce Clause as a substantive check on the power of Congress. A series of cases and laws passed in the 90s, however, led to a reinterpretation of the Commerce Clause. In 1995, the Rehnquist Court, in United States v. Lopez, decided that Congress could not make it a federal crime to carry firearms near a school. [9] Moreover, in United States v. Morrison (1999), the Court found that Federal Section 13981 of Violence Against Women Act of 1994 could not be considered constitutional under either the Fourteenth Amendment or the Commerce Clause. [10] The Court moved away from decades of precedent, instead ruling that Congress’s actions in these cases were too far removed from interstate commerce to be reasonably considered constitutional.
In National Federation of Independent Business v. Sebelius, the Court ruled that the Affordable Care Act’s individual mandate was not a valid exercise of Congress’s power as construed by the Commerce Clause. Citing Lopez, Chief Justice Roberts wrote: “does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.” [11] Instead, the Court ruled that the mandate was a valid exercise of Congress’s power to “lay and collect Taxes”: “[the individual mandate] makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.” [12] Chief Justice Roberts concluded that the penalty incurred from the individual mandate for not obtaining health insurance can reasonably be construed as a tax. [13] At the end of his opinion, Chief Justice Roberts concluded with the following adversative remark: “But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.” [14]
Jake Gray
Staff Writer
National Federation of Independent Business v. Sebelius
After decades of controversy regarding the government’s role in ensuring health care for its people, the Supreme Court set a precedent that forever changed the accessibility of health insurance on June 28, 2012. In National Federation of Independent Business v. Sebelius (2012), the Court upheld most provisions of the Patient Protection and Affordable Care Act, which aimed to increase the number of people with health care, decrease medical expenses, and expand Medicaid. The Affordable Care Act ordered an individual mandate for health insurance to be enacted by 2014, in which Americans who did not “maintain ‘minimum essential’ health insurance coverage” were penalized with a tax paid to the Internal Revenue Service. [1]
Health care reform has been a key issue for the country since President Johnson’s establishment of Medicare and Medicaid in 1965—public programs designed to assist low-income families, people with disabilities, and older citizens in obtaining health care coverage.[2] Both programs have been revised multiple times, attempting to determine the suitable amount of government regulation in the health care industry. As a longstanding political issue, health care was one of the main policy issues presidential nominees discussed during the 2008 election; consequently, when President Obama took office, he signed the Patient Protection and Affordable Care Act into law on March 23, 2010.[3]
The passage of this federal statute resulted in National Federation of Independent Business v. Sebelius, where Florida among 25 other states, the National Federation of Independent Business, and plaintiffs Kaj Ahburg and Mary Brown challenged the constitutionality of two key tenets: the individual mandate and the withdrawal of federal funding from state Medicaid programs if they refused to partake in the program’s expansion. Regarding the issue of whether Congress had exceeded its powers in imposing the tax penalty, Chief Justice Roberts delivered the opinion of the court: the individual mandate provision was neither supported by the Commerce Clause nor the Necessary and Proper Clause, but was certainly valid under the Taxing and Spending Clause. Article 1 Section 8 Clause 1 enumerates Congress’ power to “lay and collect Taxes,” making the tax penalty well within the powers of the government to impose. [4]
Next, the Court addressed the issue of federalism within the threat to withdraw funding for Medicaid if the states did not comply with its expansion. In a split decision of 5-4, the justices ruled that it was unconstitutional to coerce the states with threat of withdrawing funding, but upheld the rest of the Medicaid expansion provision.[5] The slight losses notwithstanding, the Court still upheld most provisions of President Obama’s Affordable Care Act, moving the country one step closer to achieving universal health care for American citizens.[6]
National Federation of Independent Business v. Sebelius has enabled the impoverished and uninsured to receive access to health insurance, all the while expanding Congress’ powers to tax and increasing the federal government’s power over the states. Although a landmark decision, there is still a long ways to go if universal health care is to be achieved.
Tiffany Jing
Staff Writer
Texas v. United States: Resistance to the Affordable Care Act in the Trump Era
After President Trump entered office, the ACA’s future looked dim, as the new administration seeked to repeal Obamacare. While the vote for the “skinny repeal” of Obamacare failed in 2017, [1] congressional Republicans were able to remove certain key aspects of the original legislation. Under the Tax Cuts and Jobs Act of 2017 (TCJA), the ACA’s individual mandate was essentially made null beginning in 2019 [2]. The TCJA lowered the penalty of the individual mandate to $0, gutting a significant portion of the ACA [3]. This would eventually lead to an important development in December of 2018: in the District Court case Texas v. United States (2018), District Court Judge Reed O’Connor ruled the entire Affordable Care Act unconstitutional [4].
In his opinion, Judge O’Connor considers the Supreme Court’s decision to uphold the individual mandate in National Federation of Independent Business v. Sebelius (2011), also known as NFIB[5]. However, when reevaluating the individual mandate in the light of the developments from the TCJA of 2017, Judge O’Connor found that the policy was unconstitutional with regards to both Congress’ ability to tax as well as its role in regulating commerce [6].
Judge O’Connor argues that there is a difference between the mandate and the shared responsibility penalty, stating that “Congress should not have intended the mandate and penalty to be treated as one when it treated them as two” [7]. That being said, he also rules that the individual mandate was “supported by tax power” in the past [8] and that penalties did constitute a tax until the TCJA lowered the penalties down [9]. Because of this, he rules that the individual mandate “can no longer be read as an exercise of Congress’ Tax power” [10]. Noting this, Judge O’Connor also cites the decision in NFIB that Congress didn’t have the power to “compel citizens into commerce- i.e. to regulate inactivity” [11]. He refutes the positions of the defendants in a point-by-point basis, largely citing the original court ruling in NFIB [12].
Continuing on, Judge O’Connor makes his case that “[t]he Individual Mandate is inseverable from the entire ACA”, which he uses in turn to judge the constitutionality of the ACA as a whole. After a thorough legal analysis of “severability”, Judge O’Connor also analyzes the “intent” of Congress, concluding that it clearly saw the individual mandate as an inseverable part of the ACA [13]. Indeed, he notes that Congress, on three different occasions, labeled the individual mandate as an “essential” part of the legislation [14].
With this, the NFIB decision, and his analysis of possible congressional intent for the individual mandate in mind, Judge O’Connor declares that “it is ‘unthinkable’ … that the Congress would have created the’ ACA’s delicately balanced regulatory scheme without the Individual Mandate” [15]. With this in mind, he declares the ACA’s remaining provisions to be “invalid” because of its inseverability [16].
The Judge’s ruling sparked controversy as soon as the decision was released. Many didn’t see O’Connor’s ruling as fair. Nicholas Bagley, a law professor at the University of Michigan, called Judge O’Connor’s decision “about as naked a piece of judicial activism as I have ever seen” [17]. O’Connor’s record does have a significant partisan lean: his court has been involved in numerous cases against the Obama administration and The Texas Tribune notes that O’Connor has “earned a reputation as a no-nonsense conservative darling” [18].
Judge O’Connor’s judicial activism is especially apparent in his opinion when he speculates and evaluates congressional intentions from 2010 and 2017. He uses terms such as “disastrous results” to describe the effects of exorbitant premiums in the wake of Obamacare [19]. Also, while O’Connor may have relied on precedents for severability for the basis of his decision, the idea of severability in this ACA case has been regarded as a “massive stretch” by Ilya Somin, a professor of law at George Mason University, who stated that Congress’ scrapping of only the individual mandate meant that it truly wanted to “retain nearly all the rest of the law” [20].
Despite O’Connors decision that favored the opponents of the ACA, the decision is almost sure to go to appeal, with Vox reporting that nearly 17 states’ attorneys general were appealing Judge O’Connor’s decision [21]. Nevertheless, Judge O’Connor’s ruling is important to evaluate, because not only is it emblematic of the major partisan divide over the ACA, but it also reflects the major legal debate between judicial activism and restraint.
Abhishek Hariharan
Staff Writer
The Future of the Affordable Care Act
A challenge to the Affordable Care Act (ACA) is expected to make its way to the Supreme Court sometime in the next few years—a short amount of time in a judicial context. [1] After Judge Reed O’Connor’s 2018 decision in Texas v. Azar, which struck down the constitutionality of the Affordable Care Act in a Northern Texas court, the issue has become even more pressing. [2] Advocates for the ACA, who triumphed at the Supreme Court in 2011 and 2015, plan to challenge the ruling [3], and their future case is likely to make its way to the Supreme Court due to a conflict of jurisdiction: clearly, the ACA cannot be unconstitutional in Northern Texas and constitutional everywhere else. [4]
Although the ACA has survived legal challenges before, Texas v. Azar is particularly significant because it represents the first major challenge to the Affordable Care Act under President Donald Trump. In the two previous Supreme Court cases, National Federation of Independent Business v. Sebelius (2011) [5] and King v. Burwell (2015) [6], President Barack Obama occupied the Oval Office. The Trump administration had previously voiced its support for the law, with the exception of the “community rating rule and the guaranteed issue requirement,” two parts of the law that served as “protections for people with pre-existing conditions” [7] (an issue that is in itself a flashpoint for ACA supporters [8]). However, after Judge O’Connor’s December 14 ruling, President Trump seemed to have changed his tune, announcing on Twitter, “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions.” [9]
President Trump, as a member of the Executive Branch, should not have any control over Supreme Court decisions, but scholars have found that presidents, especially those who have appointed justices, often have undue power over the Court. [10] A 2006 study by Joseph M. Whitmeyer, a professor of sociology at the University of North Carolina—Charlotte, found that presidents could shape up to “25% of Supreme Court decisions” through “ideological appointments” of justices. [11] Trump already has a sizable influence over the Court, having already appointed two justices within three years: Neil Gorsuch to replace the late Justice Antonin Scalia in 2017 [12], and Brett Kavanaugh to replace the retired Justice Anthony Kennedy in 2018 [13]. By comparison, Barack Obama appointed two justices—Sonia Sotomayor and Elena Kagan—during his entire eight-year tenure in office. [14]
If Texas v. Azar does make it to the Supreme Court, Gorsuch, who leans conservative like his predecessor, is not likely to represent a change in ideology from 2011 or 2015 [15]. However, Kavanaugh—who replaced Justice Kennedy, famously known as the “swing vote” on the Court, having voted with the so-called “conservative justices” in the 2011 case of King v. Burwell, and with the so-called “liberal justices” in the 2015 case of National Federation of Independent Business v. Sebelius [16][17][18]—represents a shift for the Court, and has so far voted with its conservative bloc, which in 2015 largely dissented from the decision upholding the legality of the ACA. [19]
However, the justice that pundits are watching is not Kavanaugh, but rather Chief Justice John Roberts, who in both Independent Business and King wrote the majority opinion defending the Affordable Care Act. [19][20] Roberts, who in 2011 shocked the world by siding with the liberal bloc of justices, has not announced publicly what caused him to change his mind, although he was a strong proponent of the “tax mandate” (which was recently struck down by Texas v. Azar), to the annoyance of the conservative justices. [21] Judge O’Connor based his ruling on the fact that the tax mandate’s basis changed with revisions to the ACA in the 2017 Congress [22], so it is unclear where Justice Roberts will fall on this contentious issue. While his past history suggests a continued alliance with the liberal justices, his reasoning regarding the tax mandate suggests a potential shift in his view on the ACA.
Whatever happens, one thing is clear: this conflict of jurisdiction must be resolved one way or another.
Sonia Mahajan
Staff Writer
Bibliography
Response #1: Jake Gray
1] United States. Office of the Legislative Counsel. Compilation of Patient Protection and Affordable Care Act: Including Patient Protection and Affordable Health Care Act Health-related Portions of the Health Care and Education Reconciliation Act of 2010. Washington, D.C.: U.S. G.P.O., 2010.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] US const. Art I.
[8] Wickard v. Filburn, 317 U.S. 111 (1942)
[9] United States v. Lopez, 514 U.S. 549 (1995)
[10] United States v. Morrison, 529 U.S. 598 (2000)
[11] National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)
[12] Ibid.
[13] Ibid.
[14] Ibid.
Response #2: Tiffany Jing
[1] National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)
[2]"CMS’ Program History." CMS.gov Centers for Medicare & Medicaid Services. June 20, 2018. https://www.cms.gov/About-CMS/Agency-information/History/.
[3] "National Federation of Independent Business v. Sebelius." Oyez. https://www.oyez.org/cases/2011/11-393.
[4] National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)
[5] "NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES." Legal Information Institute. https://www.law.cornell.edu/supremecourt/text/11-393.
[6]"National Federation of Independent Business v. Sebelius." Oyez. https://www.oyez.org/cases/2011/11-393.
Response #3: Abhishek Hariharan
[1] Caldwell, Leigh Ann. “Obamacare Repeal Fails: Three GOP Senators Rebel in 49-51 Vote.” NBC News, 28 July 2017. Web. Accessed 21 April 2019. https://www.nbcnews.com/politics/congress/senate-gop-effort-repeal-obamacare-fails-n787311
[2] Eobrien818. “The GOP Tax Bill Kills Obamacare’s Individual Mandate. Here’s What That Means.” Money, 20 December 2017. Web. Accessed 19 April 2019. https://money.com/gop-tax-plan-individual-mandate-obamacare/
[3] Ibid.
[4] Wynne, Billy and Dawn Joyce. “What the Texas v. Azar Ruling Means for the ACA and Health Coverage.” California Health Care Foundation, 18 December 2018. Web. Accessed 20 April 2019. https://www.chcf.org/blog/what-the-texas-v-azar-ruling-means-for-the-aca-and-health-coverage/
[5] Texas v. United States. (N.D. Tex., 2018), pp. 5-8. Accessed through: https://oag.ca.gov/system/files/attachments/press-docs/211-texas-order-granting-plaintiffs-partial-summary-judgment.pdf
[6] Ibid, p. 19.
[7] Ibid, p. 21.
[8] Ibid, p. 23
[9] Ibid, p. 26.
[10] Ibid, p. 27.
[11] (qtd. in) Ibid, p. 28.
[12] Ibid, p. 32.
[13] Ibid, p. 35-37.
[14] Ibid, p. 40.
[15] Ibid, p. 51-52.
[16] Ibid, p. 55.
[17] (Qtd. in) Barrett, Devlin. “Legal experts rip judge’s rationale for declaring Obamacare law invalid.” The Washington Post, 15 Dec. 2018. Web. Accessed 20 April 2019. https://www.washingtonpost.com/world/national-security/legal-experts-rip-judges-rationale-for-declaring-obamacare-law-invalid/2018/12/15/9cab3bb8-0088-11e9-83c0-b06139e540e5_story.html?noredirect=on&utm_term=.7854d0aa1f07
[18] Platoff, Emma. “By gutting Obamacare, Judge Reed O’Connor handed Texas a win. It wasn’t the first time.” The Texas Tribune, 19 December 2018. Web. Accessed 20 April 2019. https://www.texastribune.org/2018/12/19/reed-oconnor-federal-judge-texas-obamacare-forum-shopping-ken-paxton/
[19] Texas v. United States. (N.D. Tex., 2018), p. 50. Accessed through: https://oag.ca.gov/system/files/attachments/press-docs/211-texas-order-granting-plaintiffs-partial-summary-judgment.pdf
[20]. (Qtd in). Platoff, Emma. “Texas is suing - again - to end Obamacare. This time it has some advantages.” The Texas Tribune, 8 Aug 2018. Web. Accessed 20 April 2019. https://www.texastribune.org/2018/08/08/texas-suing-end-obamacare-new-advantages-trump/
[21] Kliff, Sarah. “17 attorneys general are appealing the court decision overturning Obamacare.” Vox, 3 January 2019. Web. Accessed 20 April 2019. https://www.vox.com/health-care/2019/1/3/18166912/supreme-court-obamacare-texas-decision
Response #4: Sonia Mahajan
[[1] Wynne, Billy, and Dawn Joyce. “What the Texas v. Azar Ruling Means for the ACA and Health Coverage.” California Health Care Foundation. March 27, 2019. Accessed May 02, 2019. https://www.chcf.org/blog/what-the-texas-v-azar-ruling-means-for-the-aca-and-health-coverage/.
[2] Rovner, Julie. “Texas Judge Rules Affordable Care Act Unconstitutional, But Supporters Vow To Appeal.” NPR. December 14, 2018. Accessed May 02, 2019. https://www.npr.org/sections/health-shots/2018/12/14/677002085/texas-judge-rules-affordable-care-act-unconstitutional-but-supporters-vow-to-app
[3] id.
[4] Justia. “Conflicts of Jurisdiction: Federal Court Interference with State Courts.” Justia Law. Accessed May 02, 2019. https://law.justia.com/constitution/us/article-3/40-conflicts-of-jurisdiction-federal-court-interference-with-state-courts.html.
[5] New York Times. “The Supreme Court Decision on Obama’s Health Care Law.” New York Times. Accessed May 02, 2019. https://archive.nytimes.com/www.nytimes.com/interactive/2012/06/29/us/29healthcare-scotus-docs.html
[6] Liptak, Adam. “Supreme Court Allows Nationwide Health Care Subsidies.” New York Times. June 25, 2015. Accessed May 02, 2019. https://www.nytimes.com/2015/06/26/us/obamacare-supreme-court.html
[7] de Vogue, Ariane, and Luhby, Tami. “Trump Administration Now Says Entire Affordable Care Act Should be Struck Down.” CNN. March 26, 2019. Accessed May 02, 2019. https://www.cnn.com/2019/03/25/politics/trump-administration-aca/index.html
[8] Chang, Aisla. “How A Lawsuit Challenging Obamacare Could Affect People With Pre-Existing Conditions.” NPR. March 28, 2019. Accessed May 02, 2019. https://www.npr.org/2019/03/28/707722585/how-a-lawsuit-challenging-obamacare-could-affect-people-with-pre-existing-condit
[9] Trump, Donald J. “As I Predicted All Along, Obamacare Has Been Struck down as an UNCONSTITUTIONAL Disaster! Now Congress Must Pass a STRONG Law That Provides GREAT Healthcare and Protects Pre-existing Conditions. Mitch and Nancy, Get It Done!” Twitter. December 15, 2018. Accessed May 02, 2019. https://twitter.com/realdonaldtrump/status/1073761497866747904?lang=en.
[10] Whitmeyer, Joseph M. “Presidential Power over Supreme Court Decisions.” Public Choice, April 2006. Accessed May 02, 2019. https://www.jstor.org/stable/pdf/30026774.pdf?refreqid=excelsior:a83d785fd8ce2cafd6154d8c77a131f0.
[11] id.
[12] Oyez. “Neil Gorsuch.” Oyez. Accessed May 02, 2019. https://www.oyez.org/justices/neil_gorsuch
[13] Oyez. “Brett M. Kavanaugh.” Oyez. Accessed May 02, 2019. https://www.oyez.org/justices/brett_m_kavanaugh
[14] Fontana, David. “The Obama Justices.” Slate. January 13, 2015. Accessed May 02, 2019. https://slate.com/news-and-politics/2015/01/obamas-supreme-court-justices-elena-kagan-and-sonia-sotomayor-have-elite-and-populist-styles.html
[15] Oyez. “Neil Gorsuch.” Oyez. Accessed May 02, 2019. https://www.oyez.org/justices/neil_gorsuch
[16] Dwyer, Colin. “A Brief History of Anthony Kennedy’s Swing Vote and the Landmark Cases It Swayed.” NPR. June 27, 2018. Accessed May 02, 2019. https://www.npr.org/2018/06/27/623943443/a-brief-history-of-anthony-kennedys-swing-vote-and-the-landmark-cases-it-swayed
[17] King v. Burwell, 576 U.S. ___ (2015).
[18] New York Times. “The Supreme Court Decision on Obama’s Health Care Law.” New York Times. Accessed May 02, 2019. https://archive.nytimes.com/www.nytimes.com/interactive/2012/06/29/us/29healthcare-scotus-docs.html
[19] King v. Burwell, 576 U.S. ___ (2015).
[19] id.[20] New York Times. “The Supreme Court Decision on Obama’s Health Care Law.” New York Times. Accessed May 02, 2019. https://archive.nytimes.com/www.nytimes.com/interactive/2012/06/29/us/29healthcare-scotus-docs.html
[21] Biskupic, Joan. “The Inside Story of How John Roberts Negotiated to Save Obamacare.” CNN. March 25, 2019. Accessed May 02, 2019. https://www.cnn.com/2019/03/21/politics/john-roberts-obamacare-the-chief/index.html
[22] Rovner, Julie. “Texas Judge Rules Affordable Care Act Unconstitutional, But Supporters Vow To Appeal.” NPR. December 14, 2018. Accessed May 02, 2019. https://www.npr.org/sections/health-shots/2018/12/14/677002085/texas-judge-rules-affordable-care-act-unconstitutional-but-supporters-vow-to-app