Today’s 2-1 decision by a federal appeals court rules the ACA’s requirement that people have health insurance is unconstitutional because Congress has repealed the tax penalty for those who don’t have health insurance. But it steps back from the conclusion reached a year ago by Federal Judge Reed O’Connor that the entire ACA is unconstitutional.
Both parts of the decision were expected by reasonable legal scholars. The individual mandate was upheld by the Court in NFIB v. Sibelius in 2012 on the grounds that it was an exercise of Congress’s power to tax individuals. The repeal of the tax undermined this rationale for the individual mandate put forward by Chief Justice Roberts in that case.
Judge O’Connor went much further and argued that without the individual mandate, the entire ACA is unconstitutional, even though there was no explicit indication in the law that said the various provisions of it could not stand on their own. (In legal terminology, the kind of non-severability provision often found in statutes was not included in the ACA.)
Judge O’Connor’s decision was widely excoriated by both liberal and conservative legal scholars who found his conclusion absurd and irrational.
The decision announced today does not explicitly reject O’Connor’s conclusion. But it returns the case to him with the request that he “explain with more precision” how he reached his conclusion that the entire ACA is unconstitutional.
Implicit in that request is a serious doubt that O’Connor’s conclusion was warranted.
Whether O’Connor can come up with a more plausible rationale for overturning the ACA is doubtful. And we won’t know for some time whether such a plausible rationale is available or whether higher courts are willing to accept an implausible rationale for killing the ACA. Today’s decision, made by two judges appointed by Republicans (one of whom was appointed by Trump), gives us some hope that at least to some extent the rule of law and impartial justice still survive in America.
How long they survive is an open question. At any rate, the ACA lives to see another day.
And that’s a good thing for our state because the consequences of losing the ACA would be disastrous for many of us as we explained in this blog post.