Amid the avalanche of news this week, the Supreme Court lit up the hottest issue in the 2020 campaign when it announced it will hear a third challenge to the Affordable Care Act.
After Congress voted to zero out the individual mandate’s tax penalty in 2017, 20 states moved to challenge the law on the basis that the mandate no longer is a tax—undoing the key argument that Chief Justice John Roberts used to uphold the mandate and therefore the law in 2012. Further, the red state attorneys general argue in the suit that since the ACA did not have a severability clause, the law must fall.
District Court Judge Reed O’Connor agreed with these AGs in a December 2018 decision when he declared the ACA unconstitutional but stayed any action pending the inevitable appeal. A year later, in December 2019, the U.S. Court of Appeals for the 5th Circuit agreed the individual mandate is unconstitutional sans the tax, but it put the district court back to work to decide which parts of the law are affected.
Blue state AGs immediately asked the Supreme Court to hear the case on an “expedited” appeal, but it declined. This week, the court did accept the case for its coming term, which begins the first Monday in October. (The case has been renamed Texas v U.S.)
That means there is a chance arguments could be heard before the November 3 presidential elections, pointing a hot spotlight on the health care issue that already tops voter priority lists.
Our colleague Tom Miller, an attorney and health policy expert at the American Enterprise Institute, explains the case likely will mean “an amped-up replay of the 2018 congressional election period when Democratic gains were arguably driven substantially by ads claiming that Republicans wanted to take away the ACA’s protections against individuals with pre-existing health conditions losing, or being unable to gain, insurance coverage.”
But Justice Roberts has shown in the past that he wants to keep the court out of the political fray as much as possible so my money is on arguments being held after the elections. But in this volatile political environment, anything can happen.
Either way, Republicans must have a better answer than they did in 2018 about their plans to protect people with pre-existing conditions.
Galen Senior Fellow Doug Badger explains that states have shown they are able to do a better job at that now. By repurposing existing subsidy money, a number of states have created their own programs to provide added assistance for people with high health costs and therefore more serious health conditions.
In the process, health insurance premiums in those states are declining, enabling more people who had been shut out of the market because of high costs to obtain coverage.
Galen Senior Fellow Brian Blase also is leading a state effort to help Indiana tackle its high health costs. Brian got a shout out in a Wall Street Journal editorial, “Hoosier Health Lesson,” about the work that he, Doug, and other leaders are doing to advise the state on “a slate of bills that would increase competition among providers and transparency on prices.”
That is the right way to do reform. The federal government is out of its element in trying to manage something as complex and personal as health care and health insurance markets. States like Indiana can listen to constituents and fine tune their markets in a way Washington never could.
Yes, they are working under the clutches of Obamacare regulations that hog tie their individual and small group markets, and that is why federal legislation is needed to free up states with more regulatory flexibility and control over resources to assist their citizens, especially those with high health costs and lower incomes.
We have a plan: Health Care Choices, designed to energize state engagement in providing Americans more choices of more affordable coverage. Our Health Policy Consensus Group has been hard at work to enhance the plan we released in 2018, and we will be offering version 2.0 soon, so stay tuned.
Conservatives do have the answer for a new generation of health reform, with new incentives for innovative care and coverage options while protecting life, and it’s the roadmap Congress can use to help markets heal from the damage of Obamacare, no matter what the Supreme Court decides.