David Balat: The Demise of the ACA

David Balat: The Demise of the ACA

Four months after the passage of the Tax Cut and Jobs Act of 2018 and four months prior to John McCain’s famous thumbs down on the floor of the Senate essentially rejecting passage of the ACA, the Texas Public Policy Foundation and the Texas Attorney General filed suit in conjunction with 19 other States in Federal Court to bring an end to the Affordable Care Act (ACA). On December 14, 2018, a Texas Federal Judge agreed with the States that the ACA (also known as Obamacare) was indeed unconstitutional, making the entire law invalid.

Judge O’Connor’s decision stood on three pillars that ultimately led to the decision.

  1. Do the plaintiff’s have standing to bring the case?

  2. Is the Individual Mandate Constitutional?

  3. Is the Individual Mandate severable from the rest of the law?

Do the plaintiff’s have standing to bring the case? This is simply asking, “whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” (Cibolo Waste, 718 F.3d at 473). Standing consists of three elements that must be investigated by the Court and the parties bringing this case were found to have satisfied all elements of the standing requirements. It is important to note that no party initially challenged the issue of standing early on in the case.

Once the standing pillar was established, it was on to the Individual Mandate. According the Final Opinion, “The question of constitutionality is straightforward: Is the Individual Mandate a constitutional exercise of Congress’s enumerated powers when the shared-responsibility payment is zero? Because the Supreme Court upheld the Individual Mandate under Congress’s Tax Power, the Court will begin there before proceeding to an Interstate Commerce Clause analysis. The Court finds that both plain text and Supreme Court precedent dictate that the Individual Mandate is unconstitutional under either provision.” Therefore, because Congress exercised its’ Tax Power to get the law passed in 2010 and then gutted it in the passage of the 2018 Tax Cut and Jobs Act, the Individual Mandate is essentially invalid and outside the scope of Congress’ duties.

The third and most challenging of the pillars dealt with the issue of Severability. It is not uncommon for the Courts to challenge problematic portions of a law and sever them while leaving the remaining language in tact. “Severability, however, is possible only where “an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional.” Id. (quoting El Paso & Ne. R. Co. v. Gutierrez, 215 U.S. 87, 96 (1909)” However, the plain text of the ACA itself, the claims made by Congress on multiple occasions, and the Supreme Court decisions in NFIB and King make it clear that the Individual Mandate is inseverable from the remaining ACA.

This landmark decision will make a significant impact on the healthcare landscape and is sure to be challenged. Many Physicians and Physician advocacy groups see this decision as a profound success for re-establishing the Doctor/Patient relationship that was hampered by the law and are pushing forward with reforms to lower prescription drugs prices and increase transparency in pricing. Rob Henneke of the Texas Public Policy Foundation echoes the desires of many Physicians by stating, “We need to focus on the future and look to States like Texas to lead in restoring the relationship between doctor and patient, unencumbered by government and insurance company red tape. Let’s focus on solutions.”

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