Healthcare at the High Court…Again
Health law expert Christopher Robertson answers our questions as the Supreme Court considers yet another challenge to the Affordable Care Act.
Healthcare at the High Court…Again
Health law expert Christopher Robertson answers our questions as the Supreme Court considers yet another challenge to the Affordable Care Act.
The Patient Protection and Affordable Care Act (ACA) has withstood a lot of challenges in its 10-year history. After a fraught path through Congress in which it passed entirely along partisan lines, the healthcare reform legislation was the subject of at least two lawsuits less than an hour after President Obama signed it into law. Since then, congressional Republicans have waged a long “repeal and replace” campaign and suits have regularly escalated to the US Supreme Court.
In the challenge currently before the court, California v. Texas, the justices will again consider whether the now-defunct individual insurance mandate, which required nearly all Americans to purchase health insurance or pay a penalty, is unconstitutional and, if so, whether the rest of the law can stand without it.
The roots of the current case stretch back to the 2012 ruling in National Federation of Independent Businesses (NFIB) v. Sebelius. In that case—the first at the Supreme Court to consider the constitutional status of the mandate—the court decided that the penalty for not complying with the individual mandate could not be justified as an exercise of the Commerce Clause of the Constitution, but upheld it nonetheless as an exercise of Congress’ power to tax.
After an unsuccessful effort to repeal the ACA in Congress, President Trump and congressional Republicans focused on weakening the law. The Tax Cuts and Jobs Act, passed in 2017, included a provision that set the tax for failure to purchase health insurance to zero.
So where does that leave the ACA? The Record recently spoke to Professor Christopher Robertson, an expert in health law and author of Exposed: Why Our Health Insurance Is Incomplete and What Can Be Done About It, which explores cost exposure in the US healthcare system, about the case currently before the court.
Q&A
with Professor Christopher Robertson
The Record: Would you walk us through what is at issue in California v. Texas?
Christopher Robertson: The case that’s before the court argues that because the individual mandate is set at zero, it’s no longer a tax. And if it’s no longer a tax, it’s no longer constitutional, as declared in NFIB v. Sebelius.
If it were just a question of, ‘Is the individual mandate constitutional?’ it would be an exercise in theory. Since it’s been zeroed out anyway, that’s sort of like asking ‘how many angels can dance on the head of a pin?’ The amazing thing is that a district court judge in Texas ruled not only that the zero-mandate is unconstitutional, but that makes the entire Affordable Care Act unconstitutional.
This question of severability—whether you can cut out the individual mandate from the rest of the statute—has come up. The statute was over 1,400 pages long. In addition to the Medicaid expansion, it covers pre-existing conditions, essential health benefits, and subsidies for the individual market. So, if the individual mandate is unconstitutional and it cannot be severed from the statute, then we lose the whole thing.
The Record: Is the individual mandate so critical to the functioning of the entire law?
Christopher Robertson: The original theory was that the ACA needed three pillars—or three legs of a stool—to stabilize health insurance markets. The individual mandate was one and the other two were coverage for pre-existing conditions and a requirement that insurers not discriminate in their pricing, so that people with pre-existing conditions could actually afford coverage.
The individual market was designed to bring people into the system even when they’re healthy to balance out the cost of covering people with pre-existing conditions. But in fact, with the penalty for the individual mandate having been zeroed out, the sky hasn’t fallen. The law has a lot of other things to incentivize coverage, including offering huge subsidies for coverage in the individual markets and allowing kids to stay on their parents plans through age 26.
Five years ago, I was teaching my health law students that the mandate is very important. It’s the third leg of the stool—practically, economically, behaviorally. But now it’s not clear how important it is to hold the whole statute up.
The Record: How might the court apply the severability doctrine?
Christopher Robertson: The Supreme Court should be looking at congressional intent. And there, I think it’s clear that Congress didn’t intend to repeal the whole Affordable Care Act when they passed the 2017 tax reform act. They were talking about it, but they didn’t do it. What they did was zero out the mandate.
I think if we let the Constitution follow the intent of Congress, which is supposed to be the rule, it should be a pretty easy case. Putting politics aside, it seems almost impossible that this case results in striking down the entire Affordable Care Act. But, ultimately, we’ll have to see if that’s what this court does.
Five years ago, I was teaching my health law students that the mandate is very important. It’s the third leg of the stool—practically, economically, behaviorally. But now it’s not clear how important it is to hold the whole statute up.
The Record: How might the loss of Ruth Bader Ginsburg and the confirmation of Amy Coney Barrett shift the court?
Christopher Robertson: Ginsburg was clear in NFIB v. Sebelius that she thought the mandate was constitutional regardless of whether it was construed as a tax or under the Commerce Clause, and Amy Coney Barrett has been outspoken in saying that she thinks the Affordable Care Act is unconstitutional. If you just take one out and substitute the other, it’s not rocket science to see that the Affordable Care Act is on thin ice compared to where it was earlier this year.
The Record: What do you see as the possible outcomes of the case?
Christopher Robertson: The Supreme Court often tries to avoid wading into contentious matters, when possible. So I expect they will sidestep the main question. If they’re being good constitutionalists, the court will rule that nobody actually has a standing to challenge the individual mandate because it is already zeroed out and so it’s not affecting anyone any way. A slightly different analysis is that the challenge doesn’t present a real case or controversy, since there are no real disputing parties here.
Either way, I find it unlikely that they’re going to hold that this nothing of a statute, this zeroed out mandate, somehow makes the whole law unconstitutional. How could a mere advisory to get insurance, with no consequences for not doing so, somehow make it unconstitutional for Congress to do other things, like expand Medicaid?
The Record: What about the consequences for longer term health policy?
Christopher Robertson: If the court were to strike down the whole Affordable Care Act, it creates a powerful mandate for the next Congress and the next president to do something.
The irony is that the Supreme Court is making it hard for the Congress to pass a middle-of-the-road, market-oriented piece of legislation, which is what the Affordable Care Act was. It was based on the Mitt Romney plan here in Massachusetts. It was not Medicare for All; it was trying to regulate private insurance in this very complicated free market approach. Using the states to expand Medicaid was thought to be a moderate, or even conservative, approach to the policy goal of universal coverage.
But if the Supreme Court keeps insisting on formalisms that strike down these approaches—well, nobody seems to doubt the constitutionality of Medicare. So, a decision in this case could push Congress and force them to do a Medicare for All, single-payer system. Now, whether that’s good or bad is up for discussion. But I think it’s ironic that the conservative justices may make a conservative approach to healthcare reform more difficult.
