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Latest Obamacare Challenge, Based on Nonexistent Provision, Reaches Fifth Circuit

By Christopher Coble, Esq. on July 16, 2019

Few pieces of legislation have been as controversial as the Affordable Care Act, also known as Obamacare. And the seemingly endless parade of legal challenges to the law appears at odds with its popularity among the general public. The least popular aspect of the law -- that everyone was required to obtain health insurance and could be penalized for not doing so -- was repealed by the Trump administration, so of course everyone loves it now, right?

Not so much. In fact, 20 states (and the Trump administration) are now arguing that, without the individual mandate's penalty provisions, the entire Act is unconstitutional. And the Fifth Circuit Court of Appeals is entertaining the idea. So, will Obamacare survive this latest legal challenge?

Magical Mandate?

In March last year, Texas led 19 other states in suing the federal government, seeking to invalidate the entire Affordable Care Act. Trump administration lawyers declined to defend the law in court, and a federal judge in Texas struck down the law. The judge, however, withheld the ruling from going into effect, and House Democrats voted to direct the Office of General Counsel to defend the ACA in pending litigation. The ruling was appealed, and the Fifth Circuit heard oral arguments in the case last week.

As we noted in January:

When the Supreme Court first examined the ACA's mandate requiring people to buy health insurance in 2012, it ruled that Congress could legally penalize people without health insurance based on its taxing power. Ironically, after Congress decided to reduce that penalty to zero, 20 states argued that the individual mandate was now unconstitutional ...
President Donald Trump's Justice Department declined to defend the ACA mandate, as well as the law's provisions requiring insurance coverage for people's pre-existing conditions. If the current ruling stands, those conditions would no longer be covered.

Clearly, that would be bad news for people who've enrolled in health insurance since the ACA was passed, as they could lose coverage, health insurers could refuse coverage outright, and mandatory coverage for preexisting conditions could disappear. Of course, none of this would happen if the Fifth Circuit overturns the lower court ruling or until the Supreme Court had a chance to weigh in, but some remain skeptical of the ACA's chances:

"Given that Texas is the plaintiff and [Bill] Barr is the Attorney General, who knows what will happen," Boston College health law professor Mary Ann Chirba told Vox. "Reason, logic, legal precedent, and principle seem to matter little these days."

For now, Obamacare remains the law of the land. How long it stays that way remains to be seen.

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