And after? The New Frontier of ACA Battles | Crowe & Dunlevy


On June 17, the Supreme Court once again issued a ruling protecting the Affordable Care Act from legal disappearance. As Justice Alito put it in his dissent, this was the third installment in an “epic Affordable Care Act trilogy”. But the ACA battle is not over. The trilogy will continue to add sequels.

A 7-2 pitch at California v. Texas ruled that plaintiffs challenging the ACA’s individual mandate lacked standing, a constitutional condition for bringing an action. The court ruled that the individual mandate, initially preserved by the court in 2014 as a tax, had not harmed the plaintiffs because the financial penalty had been reduced to zero by a Republican Congress in 2017. Without the teeth of the l ‘tax, the individual mandate has no bite.

Because of this, the plaintiffs had no injuries that could be healed by a court decision and therefore, no “representation”. Of course, the dissenting judges disagreed, believing that states challenging the law had been financially harmed by other requirements imposed by an ACA that the individual mandate made possible.

Despite the wide margin of victory, ACA supporters should not be quiet. In basing its decision on standing, the court did not decide whether the warrant or the ACA were constitutional. Decision 7-2 suggests the court is reluctant to strike the ACA in its entirety, but Judge Alito’s dissent charts a possibly successful path for future litigants.

Justice Thomas’ assent suggests that if the next complainant would support the theory of dissent more forcefully, he would endorse it. Would two other judges join Thomas in “switching” to the permanent issue and subsequently find the law unconstitutional in its entirety? Given the court’s current conservative makeup, this is possible.

The next big challenge ahead (Kelley vs. Becerra) refers to a single provision, not the ACA as a whole. The provision ensures that preventive care and contraception are covered by health plans at no cost.

The ACA designates three non-governmental entities to determine the exact preventive services that the insurance should cover. Instead of a religious challenge to contraception, litigants are more technical and challenge this section of the ACA as an illegal delegation of policymaking power. Such a surgical strike could doom one of the ACA’s most popular provisions.

Legislatively, the era of “repeal and replace” seems to be over. The Biden administration and a Democratic Congress are focused on strengthening the ACA. They are seeking to make temporary pandemic health plan grants permanent, limit market deductibles, and pressure the remaining 13 states to finally expand Medicaid.

No major effort to repeal the law will be possible unless Republicans gain control of Congress and the White House after 2024. Even then, it would be a questionable political proposal to repeal a law almost 15 years old. which has become more popular as more citizens have come to rely on its guarantees.

While the threat of legislative repeal has subsided, plaintiffs willing to take on the ACA have not. Further attempts to repeal the individual mandate and the law in its entirety will occur, but targeted challenges to individual provisions of the ACA appear to be the most pressing threat to the law.

As in the film industry, the challenges of ACA keep restarting. What now looks like a trilogy will end up being part of a long series.

* This article first appeared in The Journal Record on July 16, 2021 and is reprinted with permission from the publisher.


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