Weighing The Legal Odds Of The Latest ACA Challenge

Mar 5, 2018

Indiana’s Attorney General Curtis Hill has joined 19 other states in a legal challenge against the Affordable Care Act. Experts say some parts of the argument may be more legally effective than others.


Most agree the states have crafted a nifty argument: The insurance requirement isn’t a tax anymore because Congress did away with the penalty for not buying a health plan. The 20 governors and attorneys general say that means it’s not enforceable by the federal government.

Notre Dame law professor Rick Garnett said Chief Justice Roberts’ “mandate-as-a-tax” argument was what held the ACA in place during its 2012 Supreme Court challenge, NFIB v. Sebelius.

“That it was justified under the taxing power depended on the [mandate] penalty,” he said. “The question would be: if the penalty cannot be collected, can it still be justified in that way? It seems to me it might well undermine some of what Chief Justice Roberts relied on.”

Four members of the Supreme Court said the individual mandate was justified under something called the commerce clause, which lets the federal government regulate inter-state business dealings. In contrast, Roberts said the individual mandate was constitutional — but because of the taxing argument.

“The court upheld the insurance mandate on a five-to-four vote, but Chief Justice Roberts upheld it on the grounds that is was a permissible use of the taxing power,” said Garnett.

Whether Roberts — and new Justice Neil Gorsuch — believe the taxation power still stands is up for debate.

And that’s only the first part of the states’ argument. The second: States will have to convince the courts that without the requirement, the entire law comes crashing down. In other words, a part of the law is not "severable" from the rest of the legislation.

That might be more difficult for plaintiffs to prove, say other legal experts, because Congress has already repealed certain parts of Obamacare and left others intact.

“Congress, in repealing the individual mandate tax, left the rest of the law in place,” health care legal expert Tim Jost told Politico. “It’s not up to a court to second-guess Congress … they already brought this lawsuit and they already lost.”

The Affordable Care Act has weathered four Supreme Court challenges (including the Sebelius case) since it was signed into law in 2010, as well as Congressional challenges, including several in summer 2017 that failed to topple the controversial law.

Before making its way to Washington, the lawsuit would first need to make it through the lower courts. States filed the lawsuit in the conservative court in the Northern District of Texas. It could be months before it’s heard, said Garnett.

Even if the argument ultimately proves unsuccessful, the lawsuit does add uncertainty to the future of the health care law, which can have concrete ramifications for markets and state-level laws. For example, Idaho recently announced it would allow some health plans that don’t adhere to federal ACA requirements.

This story was produced by Side Effects Public Media, a reporting collaborative focused on public health.