Texas Judge Rules ACA Unconstitutional

On Friday, December 14, a federal judge in Texas ruled the Affordable Care Act (ACA), also known as “Obamacare,” unconstitutional. But it’s not quite that cut and dried. The “unconstitutionality” of the ACA lies not in the entire piece of legislation, but in the individual mandate portion. Nevertheless, because of the way the ACA is written, declaring the individual mandate unconstitutional deems the entire ACA unconstitutional, according to District Judge Reed O’Connor, of Texas.

Congress’ 2017 tax reform bill included a change to the ACA’s individual mandate. Originally, the individual mandate required that every American purchase health insurance (if not covered by an employer’s policy) or face a tax penalty. The 2017 tax reform bill, however, eliminated the tax penalty.

Judge O’Connor ruled that when a tax penalty was attached to the individual mandate, Congress was exercising its Constitutional taxing power. Without the tax mandate, however, O’Connor ruled that Congress was overreaching its authority.

“Individual Mandate can no longer be fairly read as an exercise of Congress’s Tax Power and is still impermissible under the Interstate Commerce Clause—meaning the Individual Mandate is unconstitutional,” said O’Connor in his opinion, adding that the individual mandate is “essential to and inseverable from the remainder of the ACA.”

Judge O’Connor’s ruling goes further than the Trump administration originally asked. Invalidation of the individual mandate and the provision that protects those with pre-existing conditions were the only provisions the Trump administration had sought to overturn.

Tim Jost, a professor at Washington and Lee University, said that (in addition to the individual mandate and the pre-existing condition provision), “O’Connor’s order would invalidate many provisions of the Medicaid program, the Medicare program and other federal laws.”

Jost added, however, “Judge O’Connor has declared the individual mandate unconstitutional and the rest of the Affordable Care Act invalid, but he has not blocked its continued operation.”

“Today’s ruling is an assault on 133 million Americans with preexisting conditions, on the 20 million Americans who rely on the ACA’s consumer protections for healthcare, on America’s faithful progress toward affordable healthcare for all Americans,” said California Attorney General Xavier Becerra. “…The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court.”

California and 16 additional blue states argue that the individual mandate is still constitutional, but that even without it, the ACA could stand. The Texas federal judge’s decision on the ACA will without question be appealed.

Texas Judge Rules Obamacare Unconstitutional | KPIX CBS SF Bay Area  [2018-12-04]

Federal judge strikes down Obamacare | Fox News [2018-12-14]

Chipping Away at the Affordable Care Act: Payments to Insurers Suspended

One of the campaign promises Donald Trump appears to care about living up to is undermining all things Obama, not the least of which is the Affordable Care Act (ACA). The Trump administration’s latest bit of chipping away at the Affordable Care Act has been to suspend billions of dollars of “risk adjustment” payments to insurers who offer plans through the health exchanges set up as a result of the Affordable Care Act.

“Risk adjustment” payments pool risk for insurance companies, stabilize markets, and eliminate the incentive for insurers to restrict coverage only to healthier individuals and those without pre-existing conditions. The Affordable Care Act prohibits insurers from rejecting either type of potential member. Risk adjustment funds use money collected from insurers with healthier participants (and lower costs) to help supplement costs for insurers who take on the higher costs of enrolling sicker members.

The Trump administration cites a New Mexico district court ruling that disputes the current government formula for calculating the payments, and calls for their temporary suspension. A Massachusetts district court, however, upheld the current formula. Though the two rulings are in direct opposition to each other, the Trump administration has decided that it must abide by the New Mexico ruling – the one that would be most likely to lead to one more unraveling of the Affordable Care Act.

This is another step in making the marketplace “as inhospitable as possible,” according to Rodney Whitlock, Vice President of Health Policy at ML Strategies.

“The executive order the president signed, not long after he got to the White House after the [Inaugural] Parade was effectively, ‘We’re declaring war on the Affordable Care Act,'” says Whitlock.

Each year, fewer insurers participate in the health exchanges. Without the $10.4 billion in adjustment payments, or even with a delay in the payments, it’s likely that next year will see even fewer participating insurers and plans. Those who do participate are likely to significantly increase premiums for 2019. The result will be that even fewer small business owners and individuals – especially those who are very ill – will have access to affordable health care coverage.

With an administration that plainly cares more about abolishing Obama-era policy than it does about providing actual solutions for Americans, we’ll continue to lose not only our access to affordable health care, but we’ll also lose many of the regulations, such as environmental and food safety regulations, that were put in place to keep us healthy.

The issue of affordable and accessible healthcare (and the lack of it) has become like a can of worms that is not likely to disappear from the forefront. Many Americans who are insured through an employer, and/or who are perfectly healthy, are currently unable to see how this issue impacts their lives.

When more Americans, however, do feel the impact, whether from developing a serious and expensive illness, trying to obtain insurance with a pre-existing condition, or having a sick loved one without access to affordable healthcare, I predict that they will be wide open to the idea of a single payer or universal healthcare system – much to the dismay of the party who were its unwitting catalysts by dismantling the Affordable Care Act simply for the sake of doing so.

Trump Suspends Obamacare Risk Payments | Wochit News [2018-07-09]

Some payments halted for Obamacare program | Newsy | [2018-07-08]