Obamacare - Off to the U.S. Supreme Court, Again?

Jul 10, 2019

Yesterday, three federal appellate court judges heard oral arguments on the constitutionality of Obamacare – again. (here)

A bit of history is probably needed. The Affordable Care Act, or Obamacare, passed along strict party lines and was signed into law by President Obama in 2010. The law was based on an individual mandate, where the government forced every adult American to buy health insurance or pay a penalty.

From the start, the law was very unpopular with Americans and multiple lawsuits were filed. NFIB v Sebelius ultimately made it all the way to the U.S. Supreme Court. In a contorted decision, Chief Justice Roberts sided with the four liberal judges and ruled the penalty for not owning health insurance was actually a “tax.” Congress does indeed have the ability to tax Americans, so therefore the ACA was constitutional.

In 2014, the Supreme Court ruled in King v Burwell that the federal health insurance exchange under the ACA was legal, even though the language of the law clearly says that taxpayer subsidies can only be given out in STATE exchanges.

Fast forward to 2017 when Republicans controlled the U.S. House, the Senate and the White House, but were unable to pass health reform legislation. Congress did pass tax reform in 2017 which zeroed out the individual mandate “tax.”

Republican governors and attorneys general then sued the federal government contending that without the penalty or tax, the individual mandate was essentially unconstitutional. The authors of Obamacare did not write a severability clause into the law, so if the individual mandate no longer existed, then the entire ACA was unconstitutional. A federal judge recently ruled that the entire law was indeed unconstitutional, which led to Democratic attorneys general and the Democratic-controlled U.S. House appealing that decision.

It is not clear when the appellate court will hand down its decision, but either way, it will undoubtedly be appealed up to the U.S. Supreme Court.

Pundits are already decrying the “fact” that 20 million people will lose their health insurance and be forced to go uninsured if Obamacare is found to be unconstitutional. But what about the millions of Americans who lost their health insurance when the ACA passed? Remember the famous line – “if you like your current health insurance, you can keep it.” Twenty million people may lose their current health insurance, but there are alternative plans available to them.

Likewise, supporters of the ACA claim that 133 million people with pre-existing conditions will not be able to obtain health insurance. It really all depends on how “pre-existing condition” is defined. The overwhelming majority of these people have health problems that would not preclude them from obtaining health insurance. For those people who do have high-cost health problems, there are alternatives such as high-risk pools and reinsurance that can accommodate their health insurance needs.

Bottom line, Obamacare has not come close to reaching the goals its supporters promised the American public. When the ACA passed, 50 million Americans were uninsured. Instead of providing universal health insurance coverage like promised, the law has only reached 40 percent of that goal. Likewise, health care costs have sky-rocketed in spite of the promise that the law would bend the ever-rising cost curve down.

It is beyond time for the ACA to go. Congress then needs to be prepared to pass meaningful health care reform that puts patients back in charge, rather than the government. (here)