In the case of California v. Texas, scheduled to be heard before the United States Supreme Court on November 10, parties challenging the Affordable Care Act (ACA) seek to overturn the law as unconstitutional. What might this case mean for the future of the ACA and insurance more widely?
The usual questions surrounding the outcome of this case have been greatly complicated by the impending appointment of a new justice to the Supreme Court. Depending on which justice is appointed and when, the ACA might be upheld, weakened or eliminated entirely.
What’s at stake for the ACA?
The elimination of the ACA could have significant consequences, including:
- Decreases or complete loss of state and federal Exchange enrollment, adult Medicaid enrollment and commercial enrollment of dependents up to age 26
- A reduction or elimination of individual health insurance subsidies, which could erode Exchange enrollment
- A reduction or elimination dental benefits for adults in Medicaid
So what’s California v. Texas about, anyway?
The state of Texas, along with a group of other states and individual plaintiffs, is arguing that the ACA is unconstitutional. Specifically, they say that the 2017 changes to tax law, eliminating the penalty for failure to purchase health coverage, essentially eliminated the individual mandate, upon which the entire law depended.
Originally, the individual mandate required most people to have health insurance coverage. It penalized those who failed to comply by requiring them to pay a financial penalty to the IRS. The 2017 Tax Cuts and Jobs Act eliminated the financial penalty, but left the mandate in place.
The Texas-led plaintiffs argue that because the mandate no longer produces revenue for the federal government, it’s unconstitutional. Further, they say that the mandate can’t be severed from the rest of the ACA, so if the mandate is unconstitutional, the entire ACA is unconstitutional.
In December of 2018, a U.S. District Court judge in Texas agreed. In 2019, the case went to the U.S. Court of Appeals for the Fifth Circuit. That court agreed with the District Court’s decision that the mandate was unconstitutional, but didn’t rule on whether the mandate was inseverable. The Supreme Court could rule on the mandate, decide the issue of severability, or send the case back to the lower court to determine which ACA provisions should be retained if the mandate is eliminated.
On the other side, California, together with a group of 18 other states, is defending the ACA.
In an unusual move, the federal government is siding with Texas, though offering arguments to allow some elements of the ACA to continue.
The Supreme Court has agreed to hear the case, scheduled for November 10. It will decide whether the Texas case has merit, whether the mandate is unconstitutional and, if so, whether this invalidates the entire ACA, or whether to let lower courts rule on severability.
Depending on the outcome of the Supreme Court appointment, several scenarios are possible.
Why a new Supreme Court justice matters
President Donald Trump has nominated Judge Amy Coney Barrett to fill a vacant seat on the Supreme Court.
Barrett is currently a circuit judge on the U.S. Court of Appeals for the Seventh Circuit. She is reportedly a political conservative and constitutional originalist, which means she believes the U.S. Constitution should be interpreted as it was understood at the time it was written. As a judge, she has also ruled against the ACA in the past. If appointed, she would replace Justice Ruth Bader Ginsburg, known for being one of the Supreme Court’s most liberal justices.
Her confirmation is still ongoing. The confirmation has three possible outcomes, and each could potentially affect the California v. Texas ruling:
- A pre-election appointment. Barrett is appointed before the presidential election. Republicans appointees will have a 6–3 advantage during the hearing. A ruling by a court with a clear conservative majority could make the elimination of the ACA more likely than a ruling from a more evenly balanced court. As of this posting, Barrett is expected to be confirmed by the full Senate on Monday, 10/26.
- A “lame duck” appointment. Barrett is appointed, but not in time for the hearing. This leaves Republican appointees with their current 5–3 advantage. This outcome gives the conservative justices less of an advantage than a pre-election appointment. However, a 5–3 decision, or even a 4–4 tie, would leave the Texas decision in place, which could weaken the ACA or eliminate it entirely.
- A post-January 1 appointment. If the Republicans fail to appoint Barrett, and Trump loses the presidential election, a Biden appointee could narrow the court split to 5–4. This appointment wouldn’t come in time to affect the California v. Texas decision, but it could affect future challenges to the ACA.
While one can make assumptions about possible rulings based on these outcomes, what specifically each outcome means in terms of a ruling is unclear, said Jeff Album, Vice President of Public & Government Affairs for Delta Dental.
“We’re not sure how the conservative judges are going to hear this particular case,” Album said. “Conservatives are thought to be originalists or strict interpretationists, and if they were truly to follow an originalist philosophy, striking the entirety of the ACA is not consistent with that.”
That’s because, Album said, if Congress had intended to overturn the ACA, the 2017 tax cut bill would have explicitly called for such an overturn, and the merits of that debated openly in hearings. That this didn’t happen speaks to the intent of Congress, which is an important consideration for a Supreme Court reaching a decision based on originalist thinking.
“Strict interpretationists are loath to reverse an act of Congress,” Album said. “They don’t want to counter Congressional intent, and they certainly don’t want to legislate from the bench. And if you listen to remarks that Amy Barrett has been making in the hearings, she’s gone out of her way to say she doesn’t believe that it’s a judges’ job to do anything other than enforce the Constitution and enforce the law.”
Still, that’s not a guarantee that Barrett will rule to preserve the ACA, Album said.
“We know that Amy Barrett is not fond of the ACA,” Album said. “She’s ruled against it many times, so she already has that track record.”
So what if the ACA is struck down? Then what?
If the Supreme Court rules to strike the entire bill, the impacts are “going to be profound,” Album said.
In that scenario, blue states such as California, New York, Massachusetts and Maryland would pass state laws to attempt to preserve some elements of the ACA, Album said, but they might lack federal support for the subsidies people depend on to afford those programs. Few red states, meanwhile, would be prepared to run their own Exchanges without the federally facilitated marketplace. This could lead to enrollment in Exchanges dropping substantially, Album said.
And this could lead to substantial enrollment declines for insurance companies with sizeable managed Medicaid and Exchange business.
About 1.9 million adults who have purchased optional, non-subsidized dental benefits in the Exchanges could lose their coverage. Young adults between the ages of 19 and 26 who were added to commercial employer coverage as a result of the ACA will lose that coverage if the ACA is completely struck.
Congress could decide to provide relief, but its ability to do so is dependent on the results of the November election. We’ll take a closer look at what the election results could mean for these issues in an upcoming article.
Regardless of what happens, Album said, don’t expect anything to happen any time soon. Following the California v. Texas hearing in November, the decision won’t be announced until April or May, and possibly as late as June.
And if the Court agrees that the mandate is severable and sends that question back down to the lower courts, it could take years before that outcome and the additional legal challenges it will face.
A final twist is that while the current administration is arguing that the mandate should be struck down, it’s also urging that lower courts rule which provisions should and shouldn’t be invalidated.
“Even the Trump administration has suggested, and perhaps will argue in the Supreme Court, that some things should be left alone,” Album said. “We just don’t know which things they would cherry-pick in terms of what should be inseverable and what shouldn’t.”