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ACA ruling without legal basis

December 23, 2018

When Congress eliminated the penalty for not complying with the mandate to buy health insurance in 2017, it clearly left intact the Affordable Care Act’s other provisions.

This was more than a matter of impotence — previous efforts to repeal the act in its entirety having been thwarted. It was also recognition that Americans deemed many of those provisions — including “essential benefits” such as covering pre-existing conditions and maternity care — as, well, essential.

Another sign that the public deemed health care, including these provisions, as important was the drubbing Republicans were given in the midterm elections for the U.S. House after Democrats successfully made health care a go-to issue, sidelining the party’s attempt to fearmonger over immigration and a Central American caravan.

All this makes federal Judge Reed O’Connor’s recent ruling not just legally without foundation, but without merit on the political front, Republicans’ pledges to create a new health care plan notwithstanding. Simply, there is no meaningful plan without an individual mandate, and that’s difficult to envision without a penalty.

Yes, in upholding the ACA in 2012, a Supreme Court majority led by Chief Justice John Roberts said Congress’ authority in the Constitution to regulate interstate commerce did not justify the act. Instead the mandate as a form of taxation, of the kind that Congress is clearly authorized to impose, did. O’Connor then reasoned that without the tax — the penalty — the rest of the act could not pass constitutional muster.

And this ignores both the congressional action that left all other provisions intact in 2017 and the fact that the Supreme Court has always perceived that it has an obligation to salvage as much of federal legislation as it can if it is undercutting part of it.

All that makes O’Connor’s ruling legally suspect amid charges that this particular judge — nominated by President George W. Bush — went on an ideological bender to arrive at his decision. But it is full of political problems for a GOP limping into the presidential campaigns that will begin in earnest in early 2019.

If the 5th Circuit Court of Appeals overturns O’Connor, who is based in Fort Worth, that could diminish the potency of health care as an election-year issue early. If, however, the appeals court upholds the ruling, it won’t get to the Supreme Court until its term begins in October, which means a ruling sometime in the midst of 2020 electioneering.

“Repeal and replace” was worthless as a slogan in the midterms — because it was not believable. It is likely to be even more unbelievable in 2020.

If this ruling is allowed to stand, nearly 20 million Americans will be without coverage, with ripple effects in employer-provided health care possible because those essential benefits will have disappeared.

If Congress — with a Democratic majority in the House and a GOP majority in the Senate — is smart, it will act to shore up the ACA to insulate it from more judicial or administration damage. Meanwhile, we have a ruling with dubious legal foundation again threatening — literally — the health of the country. This is getting old. And, by the way, this is happening because of a lawsuit by states led by, you guessed it, Texas Attorney General Ken Paxton.

If you find yourself without health care or with inadequate coverage, please drop him a note to thank him.

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