Trump admin asks Supreme Court to kill ACA as COVID-19 surges in West, South

June 26, 2020

Dive Insight:

The legal battle over the ACA has finally arrived at the Supreme Court, again, after winding its way through the legal system for years.

While that was expected, the unprecedented pandemic ravaging the country has heightened the potential consequences if Republicans get their wish to kill the landmark Obama-era law.

As millions have lost their jobs from the economic falloutmany have turned to the ACA marketplaces, also referred to as the exchanges, to sign up for insurance coverage.

If the law were to fall, about 20 million Americans would lose coverage and other protections that shield them from being denied coverage because of a pre-existing condition. 

CMS said this week that more Americans have enrolled for marketplace coverage during a special enrollment period (job loss qualifies enrollees to buy outside of open enrollment) than any other time in the marketplace's history.

About 487,000 consumers have gained coverage through the special enrollment due to loss of prior coverage. That's an increase of 46 percent from the same time period last year, CMS said. 

However, if the law were overturned, Americans would lose the ability to shop on the exchanges.  

The crux of the case centers on whether the law can stand on its own without the penalty for the individual mandate in place. 

In December 2017, the Republican-led Congress, enacted the Tax Cuts and Jobs Act, which essentially eliminated the individual mandate — requiring Americans to have insurance coverage or face a financial penalty — by moving the financial penalty to zero dollars. 

Following that action, several plaintiffs led by Texas and other red states, and later two individuals, filed a lawsuit claiming that the ACA could no longer stand on its own without the individual mandate and that the entire law had to be struck down.

A district court judge agreed with the plaintiffs and ruled the individual mandate was unconstitutional and "inseverable" from the law as a whole, striking down the entirety of the ACA.

An appeals court ruled similar to the district judge — in part. It ruled that the individual mandate was unconstitutional but kicked the key question about severability back to the lower court.       

In its brief filed late Thursday night, the DOJ said that without the part of the law that enforces coverage requirements, "the entire ACA thus must fall with the individual mandate."

However, in a confusing legal argument, the DOJ is asking for the plaintiffs' relief to be limited while also asking the Supreme Court to strike down the entire law.  

"It's super confusing and a mess legally - I don't envy whoever has to argue it in front of the Supreme Court," said Katie Keith, a lawyer and health policy expert at Georgetown University. Keith also is an author of a Health Affairs blog on the ACA.

"I think it's their attempt to still ask that the entire law be struck down but, if it comes to that, preserve the right to cherry pick the parts of the law that they like and want to keep later."