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| Who Should You Blame if You Lose Your Health Care? | |
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| Almost exactly a year ago, a federal judge in Texas who is widely known for his anti-Affordable Care Act rulings wiped the entire health care law off the books. That’s right. Not only the quality-control measures and the requirements of coverage for pre-existing-conditions and that young adults can remain on their parents’ plans but also the Medicaid expansion, Medicare’s new drug benefits and countless other reforms. Many Americans don’t realize how many benefits they currently enjoy come from the Affordable Care Act, which has given tens of millions access to health care over the past decade. | Almost exactly a year ago, a federal judge in Texas who is widely known for his anti-Affordable Care Act rulings wiped the entire health care law off the books. That’s right. Not only the quality-control measures and the requirements of coverage for pre-existing-conditions and that young adults can remain on their parents’ plans but also the Medicaid expansion, Medicare’s new drug benefits and countless other reforms. Many Americans don’t realize how many benefits they currently enjoy come from the Affordable Care Act, which has given tens of millions access to health care over the past decade. |
| On Wednesday, the federal appellate court reviewing the case finally issued its decision. It refused to reverse the lower court outright. Instead, it did President Trump and Republicans a big favor and sent the case back down to the same judge and in so doing all but ensured that there would be no ruling on the law’s fate until after the 2020 election. The court has enabled Mr. Trump to escape accountability to the voters for his efforts to destroy the law. | On Wednesday, the federal appellate court reviewing the case finally issued its decision. It refused to reverse the lower court outright. Instead, it did President Trump and Republicans a big favor and sent the case back down to the same judge and in so doing all but ensured that there would be no ruling on the law’s fate until after the 2020 election. The court has enabled Mr. Trump to escape accountability to the voters for his efforts to destroy the law. |
| This is a serious democracy problem. You can hate the Affordable Care Act, but if you care about separation of powers and the respective roles of courts and Congress, and the rule of law, this is a much bigger issue than just the A.C.A. That’s a major reason so many prominent conservative legal scholars have come out against the decision. | This is a serious democracy problem. You can hate the Affordable Care Act, but if you care about separation of powers and the respective roles of courts and Congress, and the rule of law, this is a much bigger issue than just the A.C.A. That’s a major reason so many prominent conservative legal scholars have come out against the decision. |
| If the A.C.A. is thrown out, people will be shocked by how much is gone. Didn’t pay a copay for your kid’s vaccine or your colonoscopy? Are you a senior with high drug costs that suddenly went from not covered to covered? That’s the A.C.A. Got new coverage for substance-use disorder treatment? That’s most likely the A.C.A., too. | If the A.C.A. is thrown out, people will be shocked by how much is gone. Didn’t pay a copay for your kid’s vaccine or your colonoscopy? Are you a senior with high drug costs that suddenly went from not covered to covered? That’s the A.C.A. Got new coverage for substance-use disorder treatment? That’s most likely the A.C.A., too. |
| There’s much more: subsidies for about nine million Americans that have helped them obtain health care for the past six years. The Medicaid expansion, which has allowed roughly 17 million more Americans to get health care. Those with pre-existing conditions — as many as 133 million of them — who before the A.C.A. had to pay more or couldn’t get covered. All gone. | There’s much more: subsidies for about nine million Americans that have helped them obtain health care for the past six years. The Medicaid expansion, which has allowed roughly 17 million more Americans to get health care. Those with pre-existing conditions — as many as 133 million of them — who before the A.C.A. had to pay more or couldn’t get covered. All gone. |
| The average American may not realize it because the decision was paused pending appeal, but the consequences of eliminating the health law will be staggering. | The average American may not realize it because the decision was paused pending appeal, but the consequences of eliminating the health law will be staggering. |
| Did Congress vote for these enormous disruptions to millions of Americans’ health care? Of course not. Americans would have known if that had happened. Republicans in Congress tried to repeal the law more than 60 times but failed because too many constituencies depend on the law and want it to stay. And yet the legal doctrine that the judge used to kill it is one that is supposed to turn on what Congress wanted and what Congress did. | Did Congress vote for these enormous disruptions to millions of Americans’ health care? Of course not. Americans would have known if that had happened. Republicans in Congress tried to repeal the law more than 60 times but failed because too many constituencies depend on the law and want it to stay. And yet the legal doctrine that the judge used to kill it is one that is supposed to turn on what Congress wanted and what Congress did. |
| Instead we had a federal judge who took matters into his own hands and decided to accomplish himself — ending the Affordable Care Act — what Congress decided it could and should not accomplish through the democratic process. | Instead we had a federal judge who took matters into his own hands and decided to accomplish himself — ending the Affordable Care Act — what Congress decided it could and should not accomplish through the democratic process. |
| We have an appellate court that is allowing the Trump administration to hide from the American people until after election the consequences of its indefensible position not to defend the law. The California attorney general is trying to get the Supreme Court to intervene for early case review, but that is a long shot. | We have an appellate court that is allowing the Trump administration to hide from the American people until after election the consequences of its indefensible position not to defend the law. The California attorney general is trying to get the Supreme Court to intervene for early case review, but that is a long shot. |
| The case turns on the 2017 Tax Cuts and Jobs Act. There, after Congress decided it could not repeal the A.C.A., it did get rid of the penalty that had been associated with the failure to comply with the law’s insurance-purchase requirement. A group of Republican-led states sued, arguing that the insurance-purchase requirement was unconstitutional without the penalty. In the 2012 Supreme Court challenge to the A.C.A., the court held the requirement was constitutional if understood as a tax; the red states argued in 2018 that without a penalty, the requirement was no longer a tax and therefore invalid. | The case turns on the 2017 Tax Cuts and Jobs Act. There, after Congress decided it could not repeal the A.C.A., it did get rid of the penalty that had been associated with the failure to comply with the law’s insurance-purchase requirement. A group of Republican-led states sued, arguing that the insurance-purchase requirement was unconstitutional without the penalty. In the 2012 Supreme Court challenge to the A.C.A., the court held the requirement was constitutional if understood as a tax; the red states argued in 2018 that without a penalty, the requirement was no longer a tax and therefore invalid. |
| If that’s all there was, this wouldn’t be a crisis. The requirement has not been enforced anyway, and its continued validity is academic. The crisis comes from the fact that the challengers decided also to argue that the entire Affordable Care Act must go down with it — that all the benefits that exist apart from the toothless purchase requirement could not function without it, despite the fact that the A.C.A. is indeed functioning without it. The Trump administration ultimately agreed with this extreme position. | If that’s all there was, this wouldn’t be a crisis. The requirement has not been enforced anyway, and its continued validity is academic. The crisis comes from the fact that the challengers decided also to argue that the entire Affordable Care Act must go down with it — that all the benefits that exist apart from the toothless purchase requirement could not function without it, despite the fact that the A.C.A. is indeed functioning without it. The Trump administration ultimately agreed with this extreme position. |
| The irony here is that the settled legal test that all courts, including the Supreme Court, apply in such circumstances expressly requires the court to ask what Congress would have wanted: Had Congress known a piece of a larger law would be struck down as unconstitutional, would it have wanted the rest of the statute to stand? Usually this inquiry — known as “severability” — requires a court to guess what Congress would have wanted to do. The A.C.A.’s case, however, is unusually easy because it was the 2017 Congress that made the decision to excise a piece of the law, and that same Congress left the rest of the law standing. End of story. | The irony here is that the settled legal test that all courts, including the Supreme Court, apply in such circumstances expressly requires the court to ask what Congress would have wanted: Had Congress known a piece of a larger law would be struck down as unconstitutional, would it have wanted the rest of the statute to stand? Usually this inquiry — known as “severability” — requires a court to guess what Congress would have wanted to do. The A.C.A.’s case, however, is unusually easy because it was the 2017 Congress that made the decision to excise a piece of the law, and that same Congress left the rest of the law standing. End of story. |
| The way in which the trial court flouted that legal test and in so doing usurped the clearly expressed position of the 2017 Congress is the reason there is a broad legal consensus that the decision is lawless. It’s also the reason the appellate court should have reversed outright rather than buying time for the president by sending it back to the trial court for another look. | The way in which the trial court flouted that legal test and in so doing usurped the clearly expressed position of the 2017 Congress is the reason there is a broad legal consensus that the decision is lawless. It’s also the reason the appellate court should have reversed outright rather than buying time for the president by sending it back to the trial court for another look. |
| The appellate court told the trial court to examine the A.C.A. more carefully with “a finer-toothed comb,” to determine how many — if any — provisions are really inextricably tied to the purchase requirement. It also rightly chided the trial court for not giving proper consideration to the position of the 2017 Congress, as the legal test required it should. | The appellate court told the trial court to examine the A.C.A. more carefully with “a finer-toothed comb,” to determine how many — if any — provisions are really inextricably tied to the purchase requirement. It also rightly chided the trial court for not giving proper consideration to the position of the 2017 Congress, as the legal test required it should. |
| But as the dissenting judge noted, the appellate court itself could have shut the case down and left the future of health care to the democratic process, where it belongs. She wrote: “It is difficult to imagine a plainer indication that Congress considered the coverage requirement entirely dispensable and, hence, severable. And yet, the majority is unwilling to resolve the severability issue.” She added that it “will unnecessarily prolong this litigation” and so will cause continued uncertainty “over the future of the health care sector.” | But as the dissenting judge noted, the appellate court itself could have shut the case down and left the future of health care to the democratic process, where it belongs. She wrote: “It is difficult to imagine a plainer indication that Congress considered the coverage requirement entirely dispensable and, hence, severable. And yet, the majority is unwilling to resolve the severability issue.” She added that it “will unnecessarily prolong this litigation” and so will cause continued uncertainty “over the future of the health care sector.” |
| In short, no one wants to be held accountable. So who will Americans blame when they lose their health care? It is going to be up to the voters to see through all the ways in which opponents of the Affordable Care Act have tried to hide from the public their sustained efforts to destroy the law, before it is too late. | |
| Abbe R. Gluck is Professor of Law and Faculty Director of the Solomon Center for Health Law and policy at Yale Law School. | Abbe R. Gluck is Professor of Law and Faculty Director of the Solomon Center for Health Law and policy at Yale Law School. |
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