Thursday, June 14, 2018

Three reasons Obamacare might not get another big SCOTUS moment

The following article appeared in the Washington Post on June 12th

Will Obamacare get a fifth major hearing in the nation’s highest court? Probably not — but never say never when it comes to the nation's controversial health-care law.

There’s a new legal challenge raising the possibility — albeit a slight one — that the Supreme Court could hear a reprise of the first major Affordable Care Act lawsuit from six years ago. Twenty conservative, ACA-opposing states, led by Texas, have filed suit in federal court arguing the entire law is invalid because the reason the court found it constitutional — its penalty for lacking health coverage — will go away in January under the tax overhaul passed by Congress.

The case went relatively unnoticed until last week, when the Trump administration made legal waves saying it won’t defend the ACA against this new challenge. Such a posture is rare but not unprecedented (recall that the Obama administration refused in 2011 to defend the federal law banning the recognition of same-sex marriage because it considered the legislation unconstitutional).

If you consider recent history, it’s probably about time for another dramatic, Obamacare-flavored Supreme Court case. Just about every other year since Congress has passed the ACA, the Supreme Court has heard a challenge to the sweeping health-care law.

There was the 2012 NFIB v. Sebelius decision, which upheld the law’s individual mandate to buy coverage. Two years later, the court eased contraception coverage requirements for certain corporations.

Then, in 2015, there was the infamous King v. Burwell ruling in which the court said insurance subsidies could be provided even in states relying on the federal website instead of running their own marketplaces. The following year, the court heard a challenge to an “accommodation” for nonprofit employers that objected to covering birth control, although it ultimately punted that decision.

How serious, really, is this latest challenge from Texas and Co.? We can’t say with 100 percent certainty, especially considering that no one took the King case very seriously at first. But it’s hard to imagine the Supreme Court is itching to reconsider the same old questions of A) whether it’s constitutional for the government to require people to buy health insurance and B) whether the rest of the law can stay in effect without the individual mandate.

While the news about the latest Obamacare challenge sucked up a lot of oxygen last week, here are three reasons such a case may not be destined to reach SCOTUS:

1. There’s no longer a question of congressional intent.

The whole 2012 case revolved around this key question. Can the government constitutionally require people to buy health-care coverage?

Both the Obama administration defending the law and its challengers agreed the individual mandate was key to the entire law. Without requiring healthy people to buy coverage, it would be too punitive to require insurers to cover sicker, expensive people because of the exorbitant costs. The entire law was viewed as standing or falling based on the requirement to buy insurance.

Now Congress has removed the penalty for being uninsured – raising the question of whether the mandate is even a mandate anymore. If the mandate is no more, than the entire law has no basis on which to stand, Texas is arguing.

“Once the heart of the ACA — the individual mandate — is declared unconstitutional, the remainder of the ACA must also fall,” the plaintiffs wrote.

But some legal scholars — including several prominent libertarians — have noted that because Congress has removed the penalty but left the rest of the law in place, it has made clear the mandate is not in fact essential to the rest of the ACA.

“There is a big difference between a court choosing to sever a part of a law, and Congress doing so itself,” Ilya Somin, a law professor at George Mason University, wrote on in February. “Congress has already effectively neutered the individual mandate, while leaving the rest of the ACA in place.”

2. Chief Justice John G. Roberts Jr. probably isn’t eager to take up another Obamacare case.

Roberts, a noted conservative on the court, shocked many when he upheld the mandate in 2012 -- not under the federal government’s power to regulate interstate commerce but because of its power to tax citizens. In the majority opinion, Roberts defined the penalty for being uninsured as a “tax” in a legal twist that just about no oneanticipated.

Now without that “tax,” it’s fair to ask whether Roberts’ entire legal basis for upholding the law would crumble. It’s a question Roberts may not want to revisit. He took heaps of criticism from conservatives and Republicans back in 2012 for writing the 5-to-4 decision upholding nearly all of the ACA.

“Given the widespread criticism of Roberts’s opinion, it would be difficult to imagine Roberts taking another 180-degree-turn on such relatively recent precedent,” Jonathan Turley, a law professor at George Washington University who has followed Obamacare litigation, told me.

Granted, just four of the nine SCOTUS justices would have to consent for the case to be accepted under court rules. So if the three remaining justices who sided with striking the ACA – Justices Anthony Kennedy, Clarence Thomas and Samuel Alito — plus the newest justice, Neil M. Gorsuch, were open to taking the case, a potential hearing is a possibility. 

3. The mandate appears less important than previously thought, anyway.

To reiterate, the mandate was viewed in 2012 as the glue that held the ACA together. To put it another way – it was the stick to prod people into buying coverage, while the law’s insurance subsidies and Medicaid coverage were the carrots to entice them.

But it turns out the mandate is less effective in motivating Americans to get coverage than previously predicted. Many health-policy experts have argued the penalty just wasn’t sizable enough to convince people to buy coverage they felt they couldn’t afford.

In its most recent projection, the Congressional Budget Office said around 8 million people would be uninsured in a decade without the mandate — a projection one-third lower than the agency’s previous forecast of 13 million uninsured.

The case, currently before the U.S. District Court for the Northern District of Texas in Fort Worth, is scheduled for arguments later this year. Nicholas Bagley, a health-law professor at the University of Michigan, said SCOTUS consideration would depend on what the lower courts do — but he’d be surprised if it went that far.

“The case is so odd, and the arguments so strained, and I’d be surprised if the Supreme Court ended up taking it,” Bagley wrote me in an email.

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