On Wednesday, the 5th U.S. Circuit Court of Appeals announced that it agreed with a district court that the Affordable Care Act’s individual mandate was unconstitutional, but it sent the case back to the district court for additional analysis.
“I see this circuit court decision as a compromise in some ways,” Nicole Huberfeld, JD, professor of health law, ethics and human rights at Boston University School of Public Health, told Healio Primary Care. “For the circuit court to repeat the district court decision would have been plainly illegitimate and made the circuit court look like a joke.”
Prior legal actions
A December 2018 District Court ruling said that when Congress eliminated the penalty for not buying health insurance, the individual mandate was no longer constitutional, and that the entire ACA should be nullified. The Attorney General at the time, Jeff Sessions, declined to defend the ACA but did not say the entire law is unconstitutional. In April, the Department of Justice asked the 5th Circuit Court of Appeals in a two-sentence letter to affirm the district court opinion. In May, the DOJ and the states involved in the case filed briefs and then in July, made oral arguments to the circuit court supporting their respective claims. Wednesday’s circuit court decision stems from these actions.
Huberfeld said the circuit court’s decision amounts to scolding the district court for not doing a complete job.
“The district court provided no analysis to the circuit court as to why the ACA should fail. In other words, the circuit court told the district court, ‘You didn’t do your job. Your job is to figure out the basic elements of this case and you didn’t do it,” she said.
Jon Bigelow, executive director of the Coalition for Healthcare Communication, said “the Trump administration, in arguing the case, had been inconsistent in its positions, and the trial judge had not delivered a coherent decision. In asking the lower court for a do-over based on what the court called ‘a more searching inquiry,’ the circuit court delays any impact on the health care insurance system or the political debate surrounding it.”
According to Huberfeld, Wednesday’s decision means the same district court judge that looked at the case before will look at case again.
“But in instances like this, the district court judge is supposed to perform differently,” she added. “He is supposed to perform a complete analysis of what it means to decide that the individual mandate is unconstitutional. He is supposed to complete a more thorough severability analysis. He needs to evaluate the entirety of the ACA and can’t just say everything fails because the individual mandate is no longer valid. But it’s very difficult to guess what he will actually do.”
Overnight, California Attorney General Xavier Becerra, a Democrat who has been the lead attorney for the states defending the ACA, tweeted that he intends to challenge the decision, perhaps to the U.S. Supreme Court.
However, Huberfeld said the chances of the U.S. Supreme Court agreeing to hear the case before the 2020 presidential election are “slim.” If the Supreme Court puts off hearing the case until after November, then the ACA — and Americans’ health care coverage in general — stands poised to become a flashpoint issue for any presidential candidate.
“Trump likely doesn’t have a plan for what to do with the 20 million who would lose health insurance if the ACA was struck down,” she said. “His re-election prospects would have an uphill battle if the ACA was struck down. The most recent major election went to Democrats because of health care concerns. Polls consistently show Americans think Democrats are better at health care reform than Republicans.”
According to a White House statement, Trump applauded the circuit court decision, calling it “a great victory for the American people.” – by Janel Miller
Reference: United States Court of Appeals for the Fifth Circuit. State of Texas, et al v. USA, et al. http://www.ca5.uscourts.gov/opinions/pub/19/19-10011-CV0.pdf. Accessed Dec. 18, 2019.
Disclosures: Bigelow and Huberfeld report no relevant financial disclosures.