On Tuesday, November 10, 2020, the Supreme Court considered another significant case with national policy implications for the second week in a roll when they considered challenges to the Affordable Care Act. The concern of supporters of the ACA, including CWLA, is that the Court could strike down the entire law as requested by the critics represented by a handful of states led by the state of Texas. Many Court observers suggested that the tone of some conservative members of the Court makes that outcome less likely, although questioning does not always forecast the final Court judgment. 


Last year, the U.S. Fifth Circuit of Appeals agreed with Judge Reed O’Connor of the Federal District Court in Fort Worth when he ruled that “the keystone” of the law was the individual mandate and, when Congress zeroed out the individual mandate tax penalty, that that meant the law failed to be constitutional. Whether the tax penalty can be separately ruled out or whether it brings down the entire law is key. This is the issue of severability; that is, if one part of a law is struck down, does that mean the entire law must go.  


Congress zeroed out the tax as part of the December 2017 tax cut package. On December 18, 2019, the U.S. Fifth Circuit Court of Appeals in New Orleans agreed to strike down part of the Affordable Care Act provision, ruling that the requirement that people have health insurance was unconstitutional on a 2-1 decision and sent the case back to the lower court in Texas for further analysis. As a result, the U.S. Supreme Court decided to take up the case in October.


Both Chief Justice John Roberts and Justice Brett Kavanaugh seemed to indicate that just because Congress zeroed out the tax enforcement provisions does not mean the entire law would have to go down. The one part can be severed from the rest. Roberts raised questions as to why Congress didn’t just eliminate the law if that was the intent.  


Beyond the issue of keeping the ACA intact even without the mandate, is the issue of “standing.” That is, does Texas have a right to bring the case if they can’t show hardship. Texas is one of 12 states that still does not take the expanded Medicaid option under the ACA. They also lead the nation in the number of uninsured children with just under one million children of the 4.4 million uninsured children nationwide.