What’s next for the ACA?


March 29, 2019

There’s a lot to unpack from President Trump’s decision, announced earlier this week, to join a federal lawsuit that seeks to overturn the Affordable Care Act in its entirety. Not surprisingly, the decision drew criticism from defenders of the ACA. What is noteworthy, however, is the volume of criticism coming from other sources – right-wing legal scholars, Republican senators, and even the Republican attorney general of Ohio, who announced he is intervening to oppose the Administration.

But first, some necessary background.

Back in December, U.S. District Judge Reed O’Connor of Texas ruled that the entire Affordable Care Act is unconstitutional because the GOP’s 2017 tax law overturned the ACA’s individual insurance mandate. Legal experts from across the ideological spectrum assailed the ruling, saying, in effect, that you can’t throw the baby out with the bathwater. One part of the ACA could be unconstitutional, they said, but that does not address the constitutionality of many other parts of the ACA that have nothing to do whatsoever with the individual mandate.

Let’s step back and examine what would happen if the entire ACA were struck down.

In an interview with The New York Times, health care expert and law professor Nicholas Bagley says the ACA is now “part of the basic plumbing of the American health care system:”

“It guarantees protections for people with pre-existing conditions. It expanded Medicaid to cover 12.6 million more people, and it offers crucial protections to the 156 million Americans who get insurance through employers.”

After recounting the full extent of the ACA’s dominant role in health care financing, Bagley concluded: “Unceremoniously ripping up the law would inflict untold harm on the health care system – and on all Americans who depend on it.”

Other conservative legal experts addressed the lawsuit’s lack of merit, and the Trump Administration’s odd decision to join it in full.

“It’s weird,” Jonathan Adler told Politico. Adler, a professor at Case Western Reserve University School of Law who has been a vocal opponent of the ACA, said, “It just doesn’t make a lot of sense legally and it doesn’t make a lot of sense in terms of the way (the Department of Justice) normally approaches these things. DOJ normally tries to make litigation go away and tries to defend federal statutes…The substantive arguments in favor of that position aren’t very strong and you can’t find very many people who think the arguments in favor of that position are strong.”

(Others were less restrained than Adler. The editorial board of the Washington Post, for example, called the Trump Administration’s move “senseless,” “wacky,” and “bonkers.”)

That could be why, as multiple media outlets have reported, a bevy of Administration officials, including Vice President Pence, Attorney General William Barr and Health and Human Services Secretary Alex Azar urged Trump not to press for overturning the ACA in its entirety.

So, what’s next for the ACA? Some expect the Texas judge’s ruling to be overturned. But no one really knows for sure – the 5th Circuit Court of Appeals, which currently has jurisdiction over the case, is one of the nation’s most conservative appellate courts and the fate of ACA-related litigation in the past has been difficult to predict.

Meanwhile, even while the case meanders its way through the courts (the soonest the Supreme Court could review the case, if it even chooses to do so, is 2020), ACA backers in the House are moving forward with legislation to make the law stronger and more effective – and to push back against the Trump Administration’s attempts at sabotage.

This week, House members filed legislation that would strengthen protections for people with pre-existing conditions, lower health insurance premiums with strengthened and expanded affordability assistance, stop insurance companies from selling junk health insurance plans, and take measures to increase enrollment in the state and federal exchanges. The measure drew immediate praise from Families USA and the Center on Budget and Policy Priorities.


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