Legal experts and health reform advocates were both breathing sighs of relief and groans of frustration Wednesday when a federal appeals court issued its long-awaited ruling on the constitutionality of the Affordable Care Act.
It was against this backdrop that two federal appellate judges - one nominated by Donald Trump, the other by George W. Bush - ruled that the ACA's individual mandate is unconstitutional, though as NBC News' report noted, they also "sent the case back to the trial judge for another look at whether the entire law is invalid or if some parts can survive".
Circuit Judge Jennifer Walker Elrod, in the majority opinion, said the district court will have to determine which provisions can not be separated from the individual mandate. The majority, however, "feels bound to ask whether Congress would want the rest of the Affordable Care Act to remain in force". "It may also be that some of the ACA is severable from the individual mandate, and some is not", she wrote.
Dissenting Judge Carolyn Dineen King said her colleagues were prolonging "uncertainty over the future of the healthcare sector".
In his 2018 ruling, O'Connor wrote that "the Individual Mandate is essential to and inseverable from the remainder of the ACA".
It will now likely be months, perhaps even years, before the US Supreme Court could ultimately resolve the merits of a challenge to the sweeping law known as Obamacare, which guaranteed coverage for people with pre-existing conditions, such as diabetes and cancer, expanded Medicaid, and allowed children to stay on their parents' health insurance plans until they turn 26.
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The Supreme Court's 2012 majority decision to uphold the ACA was largely reliant on Congress' taxing power.
Calling the opinion "cowardly", Senate Minority Leader Charles E. Schumer (D-N.Y.) said in a statement, "Tonight's ruling is a sharp reminder to Americans that a heartless lawsuit supported by congressional Republicans and President Trump is why vital health care protections, especially protections for people with preexisting conditions, are in grave danger". For now, the ruling leaves intact access to health care for millions of Americans, who face the loss of coverage if the law is wiped out entirely.
In case the stakes for the 2020 presidential election didn't seem high enough, this case serves as a reminder that the outcome of the race may very well dictate the health security of tens of millions of American families. It's unlikely the judge will have a ruling prior to the 2020 election, which means it will kick this question into the Supreme Court following the 2020 election.
The lawsuit, spearheaded by Texas but encompassing 18 U.S. states as plaintiffs, is based on the principle that when Congress eliminated the financial penalty for failing to sign up for health insurance in 2017, it negated the entire ACA.
But what Bagley describes as the "core of the case" was the Court's conclusion that, by zeroing out the mandate penalty, Congress imposed a "coercive command" on the American people. When the case was in front of the trial judge, the Justice Department said parts of the law could be saved. The individual mandate required all Americans to carry health insurance, on pain of paying a penalty to the IRS. Texas, along with several other Republican-led states, filed a lawsuit claiming that a zero-dollar penalty is not a constitutional tax and therefore the entire law is no longer constitutional. On one side is a Texas-led coalition of mostly Republican states and the Trump administration fighting to kill Obamacare.
But because the individual mandate is no longer tied to a specific tax penalty, the states argue, it is unconstitutional. "Using that meaning, the individual mandate is unconstitutional".