Once More Unto The Breach, Dear Friends
What the New Ruling by Judge O'Connor Means for the ACA and Employers
With an event this consequential, I figured I needed to up the ante on blog titles, so who better to borrow from than William Shakespeare? King Henry rallies his troops at the front with this line, and for those of you on either side of the ACA divide, a judge’s decision last night on the fate of the ACA cries out the same way. In case you missed it, the decision simply eliminates the Affordable Care Act in its entirety as unconstitutional. Sound vaguely familiar? We’ve been down this road before, and now it looks like we’re doing it again.
In a nutshell, here’s what you need to know right now: U.S. District Court Judge Reed O’Connor issued a ruling that, if upheld, would terminate the ACA. Of course, this ruling is already being appealed, and the White House has stated that until this is decided in the courts, the ACA remains in full force and employers, insurance carriers, and taxpayers must still comply with it. In short, for now, nothing changes. This case will almost assuredly make it to the Supreme Court, setting up their third “all or nothing” decision on the fate of the ACA. But that will take time to play out.
So now that we know it's business as usual, what else do you need to know? Unlike other court cases that hit on the periphery of the ACA, this ruling is a very real threat to the entire ACA. Back in 2012, the ACA narrowly averted elimination when the Supreme Court ruled that the individual mandate was only constitutional when viewed as a tax on citizens who choose not to purchase health insurance. That tax – the individual mandate penalty – was zeroed-out for 2019 in last year’s tax code revamp. Judge O’Connor has reasoned that now that there is no tax, the individual mandate can no longer be constitutional. Therefore, he has struck the individual mandate from the ACA.
He didn’t stop there. It’s abundantly clear the individual mandate is the cornerstone upon which the ACA was built, whether you look at it from a legislative perspective or a political perspective (the Judge even counted the times Congress and the Administration publicly proclaimed this very fact to support his decision). Basically, everything the ACA does, it does to support the goal of making health insurance affordable for all U.S. taxpayers.
But if that goal is unconstitutional, the rest of law becomes unconstitutional as well. You can’t have a law in place to support a clearly unconstitutional act of Congress. Therefore, the ruling also states that the entire ACA must go.
Obviously, that's not the last word. You can’t simply undo everything that’s been put in place since 2012 and refund the trillions of dollars invested by the entire country to implement the ACA without making sure the legal argument is absolutely flawless. What Judge O’Connor has done, though, is set this up to be decided, again, by the Supreme Court.
What’s different this time? The current Court is undoubtedly more conservative than the one that considered the ACA in 2012 (and in 2015 when there was a decision handed down on the validity of taxpayer subsidies). This Court may take a different approach in interpreting the ruling. They may see that this time, Congress’ intent was to undo the tax consequence and reinterpret their earlier ruling under that mind set. If so, the ACA would be struck down.
Right now, it’s too early to know where this will end up. Keep your eye on the ball, maintain compliance with the ACA, and keep your ears open. We’ll continue to update you on this case as it starts working its way to the top. Its next stop will be in the Fifth Circuit, and from there, we’ll know if it goes straight on to the Supreme Court or gets sent back down for another review. In the meantime, if you have any questions, please contact an Assurance representative, and we’ll be happy to answer.
ABOUT THE AUTHOR