What happens if the ACA is overruled?

[หมูเด้ง]

Let’s say the ACA is overruled next year. How does that effect the midterms? How do the parties change their platforms? Does this make healthcare “settled policy”?

[GlobeSoc]

democrats pack the courts and proceed to pass an "ACA 2", the resulting bills flaws causing splits in the democratic party that would probably be more bitter than if the dems just expanded an intact ACA with policy patches/a public option.

[Splash]

If Biden wins and the Democrats flip the Senate, they could just pass the ACA again and either reinstate the shared responsibility payment associated with the individual mandate or leave the individual mandate out entirely. Either option would render the legal arguments of the plaintiffs in Texas v. Azar moot since it's based on the premise that the individual mandate cannot be severed from the rest of the law, so the whole thing must be struck down because SCOTUS only saved the mandate under Congress' power to tax and there is no longer a tax associated with it anymore because of the TCJA.

But if the Democrats are going to do that, they should probably tack on the other legislative fixes that have broad support in the party, like a government-administered public option, expanded subsidies, etc. Reduce the age of eligibility for Medicare from 65 to 55 and expand eligibility for Medicaid from 138% of FPL to 150% of FPL to make the left happy as well.

[Skill and Chance]

Kavanaugh upheld it on the DC Circuit and basically gave Roberts the tax rationale for his decision back in 2012.  I think this isn't much of a concern.  

[brucejoel99]

The healthcare industry is thrown into complete chaos, tens of millions are rapidly kicked off expanded Medicaid, insurance companies would again be able to refuse coverage to those with pre-existing conditions, the health insurance marketplaces are gone, & hundreds of other things.

[Orser67]

There'd be a massive backlash against Republicans/conservatives for striking down a fairly popular program, and Democrats would be emboldened to pass something more ambitious than Biden's healthcare proposal, although getting it through the Senate would still be a real challenge (unless the party has >~52 seats). It would also put pressure on Democrats to abolish the filibuster and pack the courts, though I still don't think they'd do the latter.

The Democratic response also depends on the Supreme Court's reasoning. If the law is struck down on the fairly technical grounds that the plaintiffs are arguing for in Texas v. Azar, then passing a new law is no big deal. But if Trump manages to get an arch-conservative on the Court, it's certainly not out of the question that the Court could strike it down as a violation of the Commerce Clause, which would endanger almost the entire Democratic legislative agenda.

[Ferguson97]

If Trump won re-election, then there's a Democratic megatsunami in 2022. Democrats take back control of the Senate, massively expand their lead in the House, and control more state legislatures and governor's races.

If Biden won the election, there is still another massive Democrat wave in 2022, and the Biden admin seeks to push for a healthcare plan that would be deemed constitutional.

[President Johnson]

If Biden won the election, there is still another massive Democrat wave in 2022, and the Biden admin seeks to push for a healthcare plan that would be deemed constitutional.

I'm not sure. Voters have short memory spans. Republicans could in return fault Democrats for the then-chaos in the healthcare system, saying it was their fault since they passed an unconstitutional law in the first place.

[Frodo]

Then we push for a modified Medicare-for-All plan.  

[7,052,770]

Depends on the detail. The entire rationale on ACA Lawsuit III is that 0ing (not repealing) the individual mandate changes the logic of the 2012 decision. Therefore, if Democrats take the presidency and the Senate, Democrats can restore the individual mandate penalty (remember, the law still exists, there 's just no longer a punishment) and make the current lawsuit moot.

Of course, Barrett, Kavanaugh, and Gorsuch could decide to throw out stare decisis and invalidate the whole law anyway, in which case millions of people are thrown off their health insurance, women can pay more than men and have to pay a surcharge for maternity coverage, and people with pre-existing conditions can be charged more too. If the whole law goes, no more exchanges or premium subsidies either. A real dystopic outcome for America, especially in a pandemic. In fact, even though it theoretically shouldn't, it will probably influence the justices not to strike down the law.

[🐒Gods of Prosperity🔱🐲💸]

My guess is that the Court will find the mandate unconstitutional, but that it is severable.  So the rest of the law stands, meaning no practical change from current conditions.

[GeneralMacArthur]

I think this discussion is incorrect.  The original 2012 ACA lawsuit was that it was unconstitutional to force Americans to purchase a good or service.  The Roberts Court ruled that it was constitutional because the individual mandate wasn't actually a mandate, it was a tax on people who didn't purchase the good/service.

If the individual mandate is gone, then nobody is forced to purchase a good or service at all, whether it's a "forced purchase" or a "tax on those who don't purchase."  So the 2012 ACA decision would seem to be irrelevant.

Texas v. Azar, as best I understand, isn't a revisiting of the 2012 decision.  It's a completely different argument -- that the individual mandate was "fundamental" to the bill, and that the bill has essentially been operating in a broken and illegitimate state for the last three years.  That argument doesn't make much sense to me, after all, isn't any legislation passed by Congress legitimate by that fact alone, unless it violates the constitution?

Perhaps my understanding of Texas v. Azar is wrong.

[🐒Gods of Prosperity🔱🐲💸]

I think this discussion is incorrect.  The original 2012 ACA lawsuit was that it was unconstitutional to force Americans to purchase a good or service.  The Roberts Court ruled that it was constitutional because the individual mandate wasn't actually a mandate, it was a tax on people who didn't purchase the good/service.

If the individual mandate is gone, then nobody is forced to purchase a good or service at all, whether it's a "forced purchase" or a "tax on those who don't purchase."  So the 2012 ACA decision would seem to be irrelevant.

Texas v. Azar, as best I understand, isn't a revisiting of the 2012 decision.  It's a completely different argument -- that the individual mandate was "fundamental" to the bill, and that the bill has essentially been operating in a broken and illegitimate state for the last three years.  That argument doesn't make much sense to me, after all, isn't any legislation passed by Congress legitimate by that fact alone, unless it violates the constitution?

Perhaps my understanding of Texas v. Azar is wrong.

The issue is that the revenue aspect of the mandate has been removed, so it can no longer be considered a tax, but the mandate still exists on paper.  Since Robert's decision relied on the mandate being a tax rather than an actual mandate, that argument no longer works.  But it seems to me the Court can easily just say that part that isn't being enforced anyway is unconstitutional, without it affecting anything else.

[GeneralMacArthur]

I think this discussion is incorrect.  The original 2012 ACA lawsuit was that it was unconstitutional to force Americans to purchase a good or service.  The Roberts Court ruled that it was constitutional because the individual mandate wasn't actually a mandate, it was a tax on people who didn't purchase the good/service.

If the individual mandate is gone, then nobody is forced to purchase a good or service at all, whether it's a "forced purchase" or a "tax on those who don't purchase."  So the 2012 ACA decision would seem to be irrelevant.

Texas v. Azar, as best I understand, isn't a revisiting of the 2012 decision.  It's a completely different argument -- that the individual mandate was "fundamental" to the bill, and that the bill has essentially been operating in a broken and illegitimate state for the last three years.  That argument doesn't make much sense to me, after all, isn't any legislation passed by Congress legitimate by that fact alone, unless it violates the constitution?

Perhaps my understanding of Texas v. Azar is wrong.

The issue is that the revenue aspect of the mandate has been removed, so it can no longer be considered a tax, but the mandate still exists on paper.  Since Robert's decision relied on the mandate being a tax rather than an actual mandate, that argument no longer works.  But it seems to me the Court can easily just say that part that isn't being enforced anyway is unconstitutional, without it affecting anything else.

Didn't the Republicans remove the individual mandate?  Is it still in there due to some technicality?  How can it be a mandate if there's no actual penalty for disobeying it?

[Splash]

There are really two questions for the Court to answer:

1. Is the individual mandate unconstitutional now that the shared responsibility payment has been set at $0 as a result of the Tax Cuts and Jobs Act of 2017?

2. If so, then is the individual mandate severable from the rest of the Affordable Care Act or not?

The absurdity of the argument is best summed up in claiming that the individual mandate is fundamental to all aspects of ACA. Please tell me with a straight face that requiring food establishments to provide caloric information about their menu options is directly tied to the individual mandate and cannot be severed. DOJ apparently thinks so. Originally, the Department had taken the position that only the guaranteed issue and community rating provisions of the law were unseverable from the individual mandate, but now they say the whole law has to go...

Theoretically, I wonder if Congress could make this case go away if they raised the shared responsibility payment to some nominal amount, like $1.00 for example?

[Splash]

I think this discussion is incorrect.  The original 2012 ACA lawsuit was that it was unconstitutional to force Americans to purchase a good or service.  The Roberts Court ruled that it was constitutional because the individual mandate wasn't actually a mandate, it was a tax on people who didn't purchase the good/service.

If the individual mandate is gone, then nobody is forced to purchase a good or service at all, whether it's a "forced purchase" or a "tax on those who don't purchase."  So the 2012 ACA decision would seem to be irrelevant.

Texas v. Azar, as best I understand, isn't a revisiting of the 2012 decision.  It's a completely different argument -- that the individual mandate was "fundamental" to the bill, and that the bill has essentially been operating in a broken and illegitimate state for the last three years.  That argument doesn't make much sense to me, after all, isn't any legislation passed by Congress legitimate by that fact alone, unless it violates the constitution?

Perhaps my understanding of Texas v. Azar is wrong.

The issue is that the revenue aspect of the mandate has been removed, so it can no longer be considered a tax, but the mandate still exists on paper.  Since Robert's decision relied on the mandate being a tax rather than an actual mandate, that argument no longer works.  But it seems to me the Court can easily just say that part that isn't being enforced anyway is unconstitutional, without it affecting anything else.

Didn't the Republicans remove the individual mandate?  Is it still in there due to some technicality?  How can it be a mandate if there's no actual penalty for disobeying it?

No, the individual mandate still exists. That's why you still had to verify that you had insurance in your 2019 tax returns. Republicans passed the TCJA using budget reconciliation, meaning that they couldn't repeal the mandate itself, but could reduce the shared responsibility payment to $0.