The 5th U.S. Circuit Court of Appeals decision for the most part punted on the central question of whether the Affordable Care Act is still valid now that Congress removed the penalty for not having insurance. Instead, the question will go to a federal judge in Texas who’s already ruled the entire law unconstitutional, keeping a cloud over Obamacare’s future. A group of Democratic-led states is appealing to the Supreme Court.
Here are some unanswered questions following the court ruling:
Is the Affordable Care Act safe?
Yes and no. Nothing’s really changed for now, but there’s no assurance that District Court Judge Reed O’Connor won’t invalidate the entire law again or how the Supreme Court will respond if he does. Regardless of the outcome, the time it takes for proceedings to play out will prolong the uncertainty hanging over the individual insurance market, potentially depressing enrollment and driving up the uninsured population. For that reason, 20 Democratic-led states defending Obamacare are asking the Supreme Court to immediately review the 5th Circuit decision.
Are preexisting conditions and other consumer protections in the law intact?
Yes — at least for now. The decision didn’t directly address most of the law’s consumer protections. But a more sweeping decision down the road could invalidate some or all of the safeguards.
What’s the impact on 2020 Democratic candidates?
It’s mixed. Had the court struck down the entire law, Democratic presidential and congressional candidates would have been confronted with a crisis and likely pivoted from discussions about “Medicare for All” to promoting ways they’d fortify Obamacare. Wednesday’s decision gives them another opportunity to voice support for the law while continuing to debate how best to achieve universal coverage. Democrats no doubt are mindful of the big gains they registered in the midterm elections by bashing Trump and GOP efforts to undermine the law.
Will the Supreme Court weigh in?
It only takes four justices to accept a case, and Democratic states are wagering that the court’s liberal bloc will opt to hear arguments now and pre-empt O’Connor from taking another whack at the law. There could be added incentive for them not to wait and risk a more conservative lineup of justices hearing the case once it percolates through the courts over as much as several years. On the other hand, University of Michigan law professor Nicholas Bagley notes it’s unusual for the justices to take cases that are still under review by lower courts. Typically the justices take about three months to grant or deny a petition, meaning even if they hear the blue states’ appeal, the case likely wouldn’t be decided by Election Day.
What happens if the case goes back to O’Connor?
The George W. Bush appointee has long been a vocal critic of Obamacare. The 5th Circuit pointedly criticized his blanket invalidation of the entire health law while asking him to pick it over “with a fine-toothed comb” and decide how the law should look without the mandate penalty.
How can the appellate court throw out the individual mandate when Congress already did?
Congress, in fact, only got rid of the penalty while the mandate stayed on the books. But when you boil down the complicated legal argument, the appeals court decision reasoned that since the Supreme Court upheld the mandate in 2012 because it’s a tax, and now there’s no de facto tax, then the whole rationale for the mandate’s constitutionality implodes.
What’s the big takeaway?
The decision buys time for Trump and his administration, who’ve yet to come up with a comprehensive health care plan in case the ACA falls. Had the panel struck down more or all of the law, it would have paved a clear path for the Supreme Court to take up the case. Instead, the appellate court judges sidestepped the central legal question and kept the law’s fate hanging just as the 2020 election cycle kicks into high gear.
Jason Millman contributed to this report.