BY DAVID BOTTOMS, REBC, RHU, CLU, CHFC
SENIOR VICE PRESIDENT, BENEFITS
Published: December 2020 Cobb Business Journal
The Affordable Care Act (ACA), originally signed into law on March 23, 2010, finds itself once again in front of the United States Supreme Court. This time, the issue at question is whether the entire law should fall because the law’s individual mandate penalty was zeroed out by Congress in 2017.
For some background, supporters of the ACA reason that the individual mandate should just be severed from law since it is now effectively irrelevant.
Opponents of the ACA feel that, if the individual mandate goes away, so should the entirety of the ACA since the law, as initially written, did not include a “severability clause” which would have indicated that the entirety of the law needed to stay in effect even if portions of the law were struck down or removed.
Absence of a severability clause was initially seen as evidence of an intentional effort to protect the law from back-end adjustments, but in reality, absence of such a clause has become a liability for the law as pieces of the Act have been adjusted in the intervening years since ACA was passed into law giving purported basis to the claim that, due to changes in the structure of the law since passage, the entire law should now necessarily fall.
During oral arguments in mid-November, the Supreme Court’s conservative contingent seemed to telegraph its legal support for the law’s survival.
For instance, Chief Justice John Roberts told the Texas solicitor general opposing the law that it was difficult to argue that Congress wanted to invalidate the ACA since it chose not to repeal it and Justice Brett Kavanaugh told the lawyer represent the ACA’s supporters that he had made a strong case for allowing the law to stand when Justice Kavanaugh stated that “I tend to agree with you this a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”
As such, despite the fact that the ACA’s return to the Supreme Court earned a high profile billing in advertising (and debating) during the recent 2020 elections, the reality is that, based both on the underlying legal grounds and the telegraphing of inclinations from conservative Justices during the hearings, the ACA is virtually assured to survive this most recent legal challenge.
As such, and although a formal ruling from the Court is not expected until mid-2021, the 12 million Americans who are in the process of renewing their individual health coverage in the weeks ahead have reason to rest easy as they consider their coverage elections for the 2021 coverage year.
Of course, resolution of this Supreme Court certainly doesn’t mean that the drama with respect to the future structure of health coverage is now concluded.
With a new Administration set to enter the White House in January with current health care plans that are currently vague at best and the Republican Senate majority hanging by a thread, I suspect it is safe to say that 2021 will provide more than ample fodder for continuing discussions regarding the future of health care.
For now, the status quo seems to be the most likely scenario for 2021…beyond that, all bets are off.
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