//  12/19/19  //  Quick Reactions

The U.S. Court of Appeals for the Fifth Circuit just gave the Republican Party a huge and unjustified gift. The court invalidated the Affordable Care Act’s now-toothless minimum-coverage provision, but delayed, likely until after the election, a ruling about whether the rest of the ACA is invalid. As a result, the 2020 election will not happen in the shadow of a Supreme Court decision about the continued vitality of the ACA’s protections for people with preexisting conditions. That is a huge windfall to the Republican Party given that the current Republican administration is the one* pressing the deeply unpopular argument that courts should invalidate the entire ACA, including the expanded Medicaid program and the protections for people with preexisting conditions. Taking that argument off the national stage in the lead up to the election will only help Republicans in 2020, while preserving the possibility that courts will strike down the rest of the ACA after the election, when voters will no longer be in as good of a position to do much about it.

The Fifth Circuit’s decision first held that the utterly toothless minimum-coverage provision is unconstitutional. In 2012, the Supreme Court had upheld the minimum-coverage provision, and the 2017 Republican Congress made the provision irrelevant when it set the penalty for failing to purchase health insurance to zero dollars. Given that Congress had already effectively reduced the minimum-coverage requirement to nothing, the Fifth Circuit’s holding that the minimum-coverage requirement is unconstitutional is pretty meaningless, even though it is legally wrong.

The real stakes of the case were always about whether the rest of the ACA’s provisions can stand even if the minimum-coverage requirement can not.  And here, the court of appeals opinion is really bad, even if it is not quite as bad as it could be.

The district court had concluded that the minimum-coverage provision cannot be severed from the rest of the ACA. That conclusion was legally indefensible for reasons I’ve explained (and many others have too). The legal test for whether one provision is severable from others turns on Congress’s intent, and specifically on whether Congress would have wanted the remainder of the provisions to continue to be enforced if one of them could not be.

While that question is occasionally difficult to answer, here it is breathtakingly easy. Congress already answered the question when it eliminated the minimum-coverage provision for all practical purposes but elected to keep the remainder of the ACA. Congress made the minimum-coverage provision unenforceable when it set the tax penalty for failing to purchase health insurance at zero dollars. There is no practical difference between Congress repealing the minimum-coverage requirement by striking it out of the U.S. Code and Congress setting the tax-penalty for failing to purchase health insurance at zero dollars. In either case, there are no consequences for failing to purchase health insurance. 

Yet the court of appeals avoided answering whether the rest of the ACA is severable from the minimum-coverage provision. It declared the severability analysis “inherently difficult … in the specific context of this case.” (lolz.) That could not be further from the truth. And by remanding the case to the same district court that invalidated the entire ACA, while going out of the way to note that the entire ACA might ultimately be invalid, the court of appeals invited the district court to reach a very similar conclusion on severability once again. (Indeed, the court of appeals quoted the portion of the district court’s opinion that said its “conclusion would only be reinforced [if it] parse[d] the ACA’s provisions one by one.” It recited, without questioning, the district court’s provision-by-provision analysis on the ACA’s major provisions, including the Medicaid expansion and protections for people with preexisting conditions. And it approvingly noted that it “share[d] the district court’s general disinclination to engage in what it refers to as ‘legislative guesswork.’”) The court took pains to note that its opinion avoided “suggest[ing] what result will be merited” on severability, and that “[i]t may still be that none of the ACA is severable from the individual mandate.”

By not deciding the severability question, the court of appeals likely delayed the possibility of Supreme Court review in this case likely until after the election. The Court generally does not hear cases that have not been finally resolved. And here, the court of appeals ensured that this case is not finally resolved by deciding not to decide whether the rest of the ACA is severable, leaving that aspect of the case unfinished.

As a result, the ACA’s defenders will be at a disadvantage if (and more likely when) they ask the Supreme Court to review the case. And by stacking the deck against Supreme Court review, the court of appeals made the continued existence of the ACA less of a national issue in the upcoming presidential election. It’s still an issue, or at least it should be, but it would have been an obvious and front-and-center issue had the Supreme Court decided to hear a case about whether to sign off on the current administration’s argument that the entire ACA must go.

That’s a huge advantage to the Republican party, whose position on health care is deeply unpopular (which is why some Republican Senators refused to go along with a full repeal of the ACA). It is also a setback to efforts to convince Democratic voters to care about the courts, given that a pending Supreme Court decision that could invalidate the expanded Medicaid program and protections for people with preexisting conditions would make clear the stakes of the federal judiciary.

By taking this issue off the national stage, the court of appeals reduced voters’ incentives to think about the continued vitality of the ACA when they go to the polls in November, while preserving the very real possibility that the court will junk the entire ACA after the election. Voters should remember that they may very well wake up to a Supreme Court decision in 2021 that endorses the Trump administration’s argument that the entire ACA must go. And everyone should be wary of commentators who assured us that the court of appeals would never buy the ridiculous arguments at the heart of this case.

(*obviously they’re joined by republican state AGs)



The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

Versus Trump: Are Tax Returns Coming Soon?

7/18/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Who Decides the Future of the Equal Rights Amendment?

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

Take Care