The 2020 election is shaping up to be yet another referendum on health care, thanks to a long-shot lawsuit against the Affordable Care Act that has somehow stayed alive in the courts.

A three-judge panel of the U.S. 5th Circuit Court of Appeals in New Orleans took up the case of Texas v. Azar on Tuesday, with two of the three jurists suggesting strongly that a now-neutered provision of the law — the mandate that adult Americans obtain insurance coverage — was unconstitutional. So much for the hope that a more senior appeals panel would summarily reject the bizarre lower-court ruling that threw out the entire ACA.

The possible outcomes here tend to be bad for consumers — and worse for Republicans, given that the lawsuit was brought by a group of top Republican officials from 20 states. The panel could declare every section of the Affordable Care Act unconstitutional, immediately jeopardizing the health coverage of the roughly

20 million Americans who obtained it through the ACA (most thanks to the expansion of Medicaid). Or it could just kill the insurance reforms that are intertwined with the individual mandate, threatening the ability of some 50 million Americans with pre-existing conditions to obtain coverage down the road.

Either one of those outcomes would force GOP candidates to defend the attack on a law that grew more popular the closer congressional Republicans came to repealing it. A partial repeal that killed the protections for preexisting conditions would be the worst of all for Republicans, given the public’s overwhelming support for those provisions. And when supporters of the law appealed to the Supreme Court, this particularly noxious aspect of Republican health policy would stay in front of voters well into 2020.

But keep your fingers crossed, Mitch McConnell! The appeals court could rule that the states have no standing to sue because they suffered no injury from Congress’ decision to repeal the tax penalty for those who do not obtain insurance. It’s quite a stretch to suggest that it’s injurious just to be ordered to do something even if there’s no consequence for not complying.

Of course, that’s just what one of the 5th Circuit jurists did suggest. So that’s not a likely outcome.

But here’s another possibility: The court could strike down the individual mandate as unconstitutional, but leave the rest of the law in place. The argument that the mandate’s tax penalty was a linchpin for the entire act is risible — it has nothing to do with the Medicaid expansion, the premium subsidies for lower-income Americans, the creation of state insurance-buying marketplaces, or many other important provisions of the law. And because the insurance market didn’t go into a death spiral after the penalty was repealed in late 2017, it’s not even clear that the mandate is now inseparable from the other insurance reforms, such as the requirements that insurers cover all applicants and not charge more to cover people with pre-existing conditions.

Admittedly, the individual mandate was originally seen as key to preventing the state exchanges that the ACA created from attracting a disproportionately sick base of customers. But as noted by Jonathan Adler, a law professor at Case Western Reserve University, that mandate is gone now. What remains is unenforceable and more symbolic than substantive. “The mandate at this point should be completely severable” from the rest of the law, Adler wrote in an email, “because it is not the mandate that Congress enacted in 2010.”

Yet that seems like an unlikely result too, given how much the panel members struggled with the whole issue of severability. This despite the fact that the Supreme Court did precision surgery on the act in 2012, eliminating the requirement that states expand their Medicaid programs to more low-income adults but retaining the option that they do so.

It’s past time for me to insert the familiar caveat that it’s risky to judge where judges may be going on a case by the questions they ask from the bench. So it’s still a possibility that the panel will throw the case out because the plaintiffs lack standing to sue, which they clearly do. And that would be the most sensible outcome. But I’m not holding my breath.

(7) comments

DickD

Here is what Democrats need to win in 2020: Healthcare plan - not Medicare for all.       Set up a healthcare plan that pays for all medical expenses that anyone can buy into.        Allow existing company paid plans to continue. Green energy plan, realizing the earth is warming.       It doesn't matter the reason, just what we can do to control the weather.        Electric cars - which are on the way, regardless.        Fuel cell cars - which are coming too.        Better solar cells and options on where they can be placed,        Batteries to supply 24/7 power from green energy solar cells.        More charging stations for electric cars. Immigration bill and plan -        We have to give DACCA immigrants green card status with a pathway to citizenship.        We need a secure border with judges to immediately hear anyone seeking asylum.      We need a plan to help Central American countries so there is no reason to leave their home.       We need a good plan on temporary visas for work we are willing to allow foreigners to perform.      We need to control visas to ensure no one overstays their visa. Taxes        Immediately reverse the latest tax bill that only served to enrich the large corporations and billionaires. Good neighbor policy -        No more beating up on our European allies.       Belong to NATO and support it fully.'     Tariffs      Negotiate one with China that forces them to realize intellectual property theft is not acceptable.      Negotiate a N. America tariff that is acceptable to Canada and Mexico.Wages:     All wages to be equal without regard to sexual orientation. Nuclear threats     Re-institute the John Kerry treaty with Iran.     Force N. Korea to stop nuclear testing - whatever it takes with a deadline. Reimbursement for past wrongs - eliminate it, you could never come up with good eligibility and it is way too late to consider payment for slavery - which was wrong.  (You could also argue slaves were better off coming to the U.S. than staying in Africa.) Schooling:      Set low interest rates for those that borrowed money for schooling beyond high school.      Make all state, non profit colleges tuition free with help from the federal government.      Set up trade schools for those not wanting a college degree. Elections:   All states to have a paper trail.      Make all election computers safe from hacking. If Trump is reelected take away his twitter account, put tape over his mouth and tie his hands.  (Not that it should be necessary, if people wake up to the realization that Trump wants to create a Fascist dictatorship.)  No more name calling by anyone elected to the White House!MAGA DUMP TRUMP - MAGADT    

shiftless88

Republicans have a long history of promising things they cannot deliver or will not deliver because once they start the people slowly realize the Republicans are wrong.

FCPS-Principal

Since the ACA was the product of a black man, Republicans will never stop trying to undermine it. If they succeed they will never stop referring to it as a fiasco, even though it has helped or even made possible health care access to tens of millions. The whole story really is that simple.

threecents

Trump and congressional Republicans have been sworn enemies of ACA from the beginning, and many of the Democratic candidates for president want to move on from it as well. But Heally seems to be claiming that the current state of ACA might be viable, even without the mandate? I am not buying that. Healthcare costs continue to rise and could wreck the economy. I know this issue is too complicated for Trump and too politically charged for Mitch, but things have to be done to fix or change the system.

DickD

Three, health care costs would not wreck the economy, if done right. Keep existing company plans, set up a buy in plan for those needing medical. Allow the federal government to set rates for doctors, hospitals and drugs. All of them are way too high,

threecents

Setting what can be charged sounds even more like socialism than expanding medicare, but maybe that is needed.

gary4books

And you say "Why say this again?" But it takes time for everyone to check it out. Do check it out: https://en.wikipedia.org/wiki/Federal_Employees_Health_Benefits_Program "The FEHB program has often been proposed as a model for national health insurance and sometimes as a program that could directly enroll the uninsured. These proposals began within its first decade and have continued ever since.["

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