CHN: 5th Circuit Panel Voids ACA Individual Mandate – but Not the Law’s Protections; Future of Case Uncertain

A three-judge panel of the 5th Circuit Court of Appeals on Wednesday struck down the individual mandate included in the Affordable Care Act. The 2-1 ruling raised more questions than it answered, but guarantees that the ACA will remain a potent political issue for some time to come.

The panel, consisting of two judges appointed by Republican presidents and one judge appointed by a Democrat, dodged the issue of “severability,” which involves whether the entire body of the ACA can be struck down after Congress removed the penalty for not having health insurance in its sweeping 2017 tax legislation. If a future court says the ACA can be struck down, then such provisions as guarantees against denying coverage for pre-existing conditions and bans on a lifetime cap on receiving benefits would be in danger – potentially affecting millions of Americans, to say nothing of those who benefited from Medicaid expansion.

Instead, the court remanded the case back to a conservative federal district judge in Texas who has been a harsh critic of the ACA. The court – in a minor but notable chastisement – instructed the judge to employ a “fine-tooth comb” in ascertaining which parts of the ACA should be stricken beyond the individual mandate, if any.

According to media reports, California Attorney General Xavier Becerra, who is leading a coalition of 20 states plus D.C. in defending the law, has indicated that they probably will ask the U.S. Supreme Court for an expedited review of the 5th Circuit’s ruling. A brief requesting such a review would have to be filed in fairly short order in order for the case to have any chance of appearing on the Supreme Court’s docket this term. If the high court declines to hear the case this term, it likely will not be decided until after the November 2020 election.

“It’s time to get rid of the uncertainty,” Becerra told Politico. “In many respects, many of us believe that this is a merry-go-around. The last thing Americans need is to have their security and the health of their kids depend on these circular arguments that are going around.”

“The rule of law demands a careful, precise explanation of whether the provisions of the ACA are affected by the constitutionality of the individual mandate as it exists today,” read the two-judge majority opinion.

But the appeals court dodged the question of whether the ACA’s protections, such as pre-existing conditions, should be struck down. Politico noted that the ruling came just hours after the latest ACA enrollment period ended, and that the decision does not interrupt coverage for anyone covered through the ACA’s insurance marketplaces or Medicare expansion.

Affordable Care Act