After the death of Ruth Bader Ginsburg Associate Justice, there are significant impacts on the latest challenges faced by the Affordable Care Act. The Act will be arriving at the Supreme Court just one week after Election Day. There are many efforts by 17 allied states and Texas in striking down the 10-year old law, and it is considered as long shot at the court. Chief Justice John Robert’s alignment was found along with the other liberal justices in most of the prior challenges.
Even without Ginsberg, there could have been four votes on either side. But that leaves the federal appeals court going against the law intact. If Senate Republicans and President Trump nominate and confirm the successor for hearing the case, that can tip the balance. But, the Supreme Court can work only when there are eight justices. Joe Biden, the Democratic presidential nominee, is now warning about the potential on Sunday when he was in a campaign in Philadelphia. Biden said, “Now, we are in the middle of the global health crisis, and that is worst, and we are living in memory. But, Donald Trump is now at the Supreme Court, and he is trying to strip off the health coverage from tens of millions of American families. He is trying to strip away the peace mind from over 100 million people, and that is with pre-existing conditions.”
Apart from this, many health care law analysts are also expecting the court to the same most. Even though not all, they want to preserve some in the law’s provisions without the presence and liberal wing leadership by Ginsburg. A professor at Case Western Reserve University School of Law, Jonathan Adler, said, “I have witnessed the case as being the sort that can split the court 5-4 even before the death of Justice Ginsberg.” A health care expert at Washington and Lee University School of Law, Timothy Jost, said on Monday, “Six or few more justices can save the law through serving just the challenged provision.” Just after Ginsburg’s death, Jost said, “Now the ACA is at a risk point when compared to a few days back.”
Is it wagging the dog? The challenge had begun when a $1.5 million tax cut, which was passed in 2017 by the Republican-dominated Congress. The same has replaced the health care tax on people who are not ready to buy insurance. The tax was targeted to prod them towards the health insurance marketplace instead let them seek some emergency care while they are uninsured. In 2018 December, Reed O’Connor, a federal District Judge, ruled that without the tax and the law couldn’t survive. When it was appealed, his ruling was later put on hold. The appeal threatened to wipe out the insurance for at least 20 million people, but protection was provided for people with preexisting conditions. It also included coverage for young adults till 26 and more, Medicaid expansion in some states, and subsidies for low-income people.
A federal appeal court panel later agreed 2-1. It was nothing but the individual mandate unconstitutional since it can no longer be read as the tax. Moreover, there is no such constitutional provision which justifies the same exercise of congressional power. Instead of striking down the entire law, the panel sent the same case back to the federal district court. They sent it for additional analysis of whether the mentioned individual mandate in the law can be served from the remaining statute. The same would allow the other provisions to remain under effect. At Supreme Court, that was a popular path. The court ruled in June, “The Consumer Financial Protection Bureau’s structure is violating the existing principles of separation of powers. It is doing so by limiting the president’s ability to remove its director.”
But meantime, it also said, “Provision can be struck down since they need to allow the bureau to continue its operation.” In July, a 30-year-old ban was rescued by justices on ‘automated calls to a cellphone.’ It has faced a free-speech challenge as well. They did it by eliminating a single exception that allowed robocalls to receivers who owe the government money. Brett Kavanaugh, associate justice, wrote that “through serving an exception, now the tail does not wag the dog.’
Kavanaugh said, “We should not treat constitutional litigations as a game against Congress. Here litigants cannot ride a discrete constitutional flaw regarding taking down the whole, in other words, constitutional statute.” The current ACA’s challenges which are backed by President Trump Administration contending that elimination of tax for people who do not buy the insurance and that renders the entire law enforcement. Earlier the Justice Department has sought to strike down just the insurance mandate. Later it changed its position and now urging the Supreme Court so that the court declares the complete law unconstitutional. But meantime, it has also added that “The exact relief should reach only to the enforcement within ACA provisions that are injuring then individual plaintiffs.”
Some conservative legal analysts also told the court, “Some states, including Texas, lack standing in bringing the case at all. The reason is Congress has wiped out the existed tax penalty, and they left uninjured. Do any other challenges exist? During its passage and consideration, the law also dubbed Obamacarein President Barack Obama’s term. In his first term, the case has reached at least six times at high-court. Later it was upheld 5-4 in 2012, and it was when Robert declared the individual mandate part in Congress taxing power. In 2015, it was rescued again when the court ruled 6-3, and tax credits made insurance affordable for millions.
Now, in the current year, the court ruled that “If employees have moral or religious obligations, they need not help in providing the insurance coverage majorly for contraceptives, and it was written under the Affordable Care Act. This was the third time when the issue was brought in front of the court. Later, justices also ruled that Congress should pay about $12 billion to the health insurance companies, which was promised under the law. It was mentioned as compensation for the losses occurred by participating early on in the health care marketplaces that are risky. If it was under normal circumstances and if there is a case in November, it will not be decided until June or May. If there are only eight justices to hear the case, there is an option to reschedule it once the other judge named either by Biden or Trump after winning the election can also participate.
With over 15 years as a practicing journalist, Nikki Attkisson found herself at Powdersville Post now after working at several other publications. She is an award-winning journalist with an entrepreneurial spirit and worked as a journalist covering technology, innovation, environmental issues, politics, health etc. Nikki Attkisson has also worked on product development, content strategy, and editorial management for numerous media companies. She began her career at local news stations and worked as a reporter in national newspapers.