PERSPECTIVE: PRESERVING THE LEGISLATIVE INTENT OF THE AFFORDABLE CARE ACT

written by Alexiss Bogger JD, MPH | June 18, 2021

A Circuit Court case, Texas v U.S., addressed the question of whether the individual mandate, §5000A(a), as defined by the Affordable Care Act (ACA) and argued in National Federation of Independent Business v. Sebelius is constitutional? As of January 1, 2019, the shared responsibility penalty payment for noncompliance with the individual mandate has been reduced to zero. The plaintiff argued the individual mandate can no longer be supported by the Taxing Power and because it is still impermissible under the Commerce Clause, the mandate is unconstitutional. The plaintiff further argued the individual mandate is inseverable from the ACA, making the ACA unconstitutional.

In California v. Texas, the Supreme Court did not address the merits of the defendant’s arguments because they concluded there was no standing for review and dismissed the case. Establishing standing for review requires establishing causation of an injury from governmental conduct and determining whether that injury is redressable. The Court in California v. Texas concludes the only remedy sought in this case is a declaratory judgment that the individual mandate is unconstitutional. The Court dismissed the case noting “to find standing to attack an unenforceable statutory provision would allow a federal court to issue what would amount to an advisory opinion without the possibility of an Article III remedy [1].” If the Court determined there was standing to hear the merits of the case, they would have addressed the constitutionality of the mandate; and if found to be unconstitutional, further addressed whether the provision was inseverable from the remainder of the ACA.

The Supreme Court has often looked to legislative intent when applying the severability doctrine. In 2012, the Court in NFIB v. Sebelius applied the severability doctrine to validate the ACA. In NFIB v. Sebelius, the Court noted “[o]ur touchstone for any decision about remedy is legislative intent, for a court cannot use its remedial powers to circumvent the intent of the legislature . . .the question is whether the Congress would have wanted the rest of the Act to stand…[w]e are confident that Congress would have wanted to preserve the rest of the Act.”

In 2010, the ACA was implemented to increase access to health care. The objective of the individual mandate was to increase the size and diversity of the insured population so to spread costs among those who are subject to the provision. After the implementation of the ACA, the number of uninsured dropped by 20 million between the years 2010 and 2016 before rising by 2 million through the first half of 2020 [3]. The effects of the Covid-19 pandemic have left many people unemployed and uninsured. ACA is increasing access to health care for those who have no health coverage through an employer. Without the implementation of the ACA, there is no doubt the number of uninsured during this pandemic would have risen even higher. The latest challenge of the ACA is not the first and will not be the last. Ultimately, preserving the legislative intent of Congress is what will reinforce the ACA.

[1] California v Texas, 593 U.S. (2021).

[2] Texas v. United States, No. 4:18-cf-00167-O (5th Cir. 2019).

[3] Arielle Bosworth, Kenneth Finegold, and Joel Ruhter, The Remaining Uninsured: Geographic and Demographic Variation. (Issue Brief No. HP-2021-06). Washington, DC: Office of the Assistant Secretary for Planning and Evaluation, U.S. Department of Health and Human Services. March 23, 2021. Assessed at: ().

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