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What You Need To Know About The Affordable Care Act After Texas Ruling

December 17, 2018 1:45 p.m.

What You Need To Know About The Affordable Care Act After Texas Ruling


Glenn Smith, constitutional and public law professor, California Western School of Law

Related Story: What You Need To Know About The Affordable Care Act After Texas Ruling


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

Several states including California are scrambling to appeal a ruling out of Texas which would invalidate virtually every aspect of the Affordable Care Act. The federal judge ruled that a change instituted by the Trump administration eliminating the tax penalties for not having insurance undermined the legitimacy of the law. Officials with Covered California say the ruling has no impact on enrollment and they've extended the sign up deadline to this Friday. Joining me is Glenn Smith constitutional and public law professor at the California Western School of Law. And Glenn welcome back.

Thank you very much. How has removing the tax penalty for not having health insurance rendered the ACA unconstitutional.

Well in the district judge's view because a few years ago when the Supreme Court by a narrow margin upheld Obamacare they said the individual mandate and the tax penalty for not having insurance was a package and was under the taxing power of the Congress it was constitutional and only for that reason. And so sort of simply put what the judge is saying is if the what held up and made valid the individual mandate was the tax penalty and Congress repealed the tax penalty. So it kind of knocked out the leg that the individual mandate was standing on.

The judge then went on to say that if the individual mandates unconstitutional it was so key to the entire Obamacare that all of Obamacare is unconstitutional. So it's a breathtaking opinion going even beyond what the Trump administration had argued.

Can you explain to us why eliminating the individual mandate makes everything about the ACA invalid. Things like accepting patients with preexisting conditions and allowing young adult children to stay on their parents insurance.

Yes and even government subsidized reimbursement for low income people and a whole variety of healthcare benefits that we've come to expect as a country in the last couple of years. The theory was that Congress would not have passed Obamacare at all or any of these that you've mentioned any of these provisions without the individual mandate that requiring a certain number of people to be insured was critical to the whole legislative design. And so under a doctrine called severability if you can't neatly sever the unconstitutional provision and leave a workable statute behind you're supposed to strike down as much of the statute that's tied in inevitably are integral to the bad part.

So if you can't excise the bad and leave the good then you have to and excise the whole thing and that's kind of the logic that the district court used if Congress voted to restore the tax penalties for not having insurance. Would that fix the problem that would fix a problem. Congress could also pass a law reinstating Obamacare or making it clear that even without the individual mandate Obamacare was intended to be functional so this really first of all your listeners should know that this is the beginning of another round of extensive discussion so it does not by any means the end of Obamacare will be appealed etc. but Congress sort of puts the ball back in the political branches court Congress and the president and will among other things have President Trump and the Republicans have to confront the assurances they gave during the midterm elections that for example protection against for preexisting conditions and all that would would continue to be protected.

Now if the preexisting condition and other aspects of the law were invalidated. Estimates range from 50 to more than 100 million Americans would no longer be able to get health insurance. And I'm wondering do statistics like that have any legal weight as this ruling goes through the appeals process.

I think they do. First of all they have a huge symbolic and practical way. The farther you go up the line you know it's one to one district court who has a certain political view can can kind of stay within his logic. But the Supreme Court has to decide if it wants to be associated with the implications that you just mentioned but where it does fit in Legally is it makes it really unlikely that Congress by removing the tax penalty last year and not saying that it was trying to eliminate Obamacare and not having the Democrats put up a big fuss and all that it sort of undermines the idea that Congress was intending so quietly and implicitly to get rid of all Obamacare given the huge implications.

So it's relevant legally suggesting that Congress probably didn't intend to do what the judge attributed to it. And it's also of course quite symbolically and important as a matter of policy.

What's the next step in the legal process.

That's not really clear. I assume that the states like California led by California who are intervening in this and perhaps the House of Representatives which has indicated that they want to jump into the lawsuit appeal. I'm sure they'll try to get a quick appeal on this. But interestingly enough the district court didn't fully resolve all the issues and didn't enjoying the Obamacare didn't didn't say that Obamacare is no longer valid. So it was opinion that as a matter of law Obamacare is invalid but it didn't have any operative mechanism. So it's not right.

It's not clear when the appeal can be brought. But when it is brought it will go to the Fifth Circuit which may affirm or reject the district court. And then if the 5th Circuit doesn't take care of this opinion and give a green light for Obamacare I'm sure it will be appealed to the Supreme Court.

I've heard that this issue could take a long time for the courts to resolve. But is there a possibility it could be fast tracked to the Supreme Court like some of the other Trump related rulings.

That's that's a great point. There is a possibility of that. I think if I were California attorney general I would try to fast track it and there is a process by which given the importance of an issue. You can bypass the circuit court again. Like all legal issues we end up discussing Morina we get a shot across the bow and that all kinds of speculation and uncertainty and we have to see kind of what happens.

Well speaking of speculation what do you think the newly configured Supreme Court might do if it agrees to take this case.

Well it's very interesting. Again this would be the third time an Obamacare challenge has gone to the Supreme Court and depends completely on what Justice Roberts would do. Chief Justice Roberts has shown a remarkable degree of respect for Obamacare's intent and not disturbing the judgment of political officials. All eyes are going to be on him to see if he thinks that the 2017 Congress is a different political view that should be respected or whether he once again saves Obamacare from the sort of cruel logic of some of the constitutional provisions. So it's hard to speculate.

I'm speculating that ultimately if it goes that far he would yet again be a fifth vote to uphold Obamacare given his institutional view that the court not be seen as the spoiler in an important issue but a less clear on that because we haven't an intervening Congress that may have taken a different position and given some political cover to the court I've been speaking with Glen Smith constitutional and public law professor at the California Western School of Law.

Glenn thanks again. You're very welcome.