THE ACA LAWSUIT AND ITS IMPLICATIONS
Ivan Hoffman, B.A., J.D.
As of this writing, there is a
case (Texas vs. United States et. al) under submission in the United
States District Court which has wide-ranging implications for everyone and
including those who count themselves among President Trump’s “base.”
If successful, the case would eliminate health insurance coverage for
tens of millions of Americans, including that base.
Republican Party including the President have winkingly (meaning, accompanied by
asterisks) proclaimed themselves to be in favor of retaining health insurance
coverage for pre-existing conditions but have wickedly failed to say that they
do not support the current law which restricts insurance companies from raising
premiums for this coverage. (see more below).
Moreover, they have continually supported this case including that the
Health and Human Services Department (“HHS”), a named defendant, and the Justice
Department, the attorneys for HHS, have sided with the plaintiffs and have
refused to defend the federal law, which is the HHS’ and the Justice
Further, on October 22, 2018,
the Trump administration rolled out new HHS regulations that would allow
insurance companies to offer lower coverage insurance, so called “junk
insurance,” which would not include coverage for pre-existing conditions.
Under the Affordable Care Act (“ACA”), such insurance is not allowed
to be issued since all insurance has to meet at least the standards set out in
This is part of the
well-announced planned attack on social programs. Of course, the government does
not call it an attack on the ACA.
The rubric is that they are enhancing “states rights” to tailor
insurance to meet their local needs.
But the effect is the same.
First, the Republican legislature and the President push through the
tax act which has created huge deficits and then they say that, because there
are huge deficits, we need to cut social programs (but not social programs such
as military spending which helps the wealthy).
by one’s own bootstraps.
The Details of
This is a case filed by 18
Republican Attorneys General and 2 Republican governors and other plaintiffs
claiming that the ACA is unconstitutional.
The back story on this: in 2012 the Supreme Court held (National
Federation of Independent Businesses (NFIB) v. Sebelius) that the individual
mandate was constitutional ruling that, although Congress could not force people
to buy health insurance, Congress could, under its’ “tax and spend” authority
provisions, impose a “penalty” for those who did not.
So the Constitutional authority for the ACA is founded on Congress’
ability to tax.
The simply-stated basis for the claim is that when the new tax act was
enacted effective January 1, 2018 and these provisions are set to become
effective January 1, 2019, it reduced the penalty for failure to sign up for the
ACA (the individual mandate) to $0, and that because there was no longer any
such “tax” that therefore there was no basis for Congressional authority to
enact the legislation. And, the argument goes on, because the individual mandate
is essential to the ACA, the entirety of the ACA should be declared
unconstitutional since there is no way to separate (“sever”) the provisions
regarding the individual mandate from the rest of the ACA.
argument further is that even if the entirety of the ACA is not stricken, the
provisions requiring that insurers cover pre-existing conditions without
additional premiums should be stricken.
involves not only the immediate issues about coverage for persons not on
Medicare or Medicaid, but because the ACA implicates many aspects of those
programs, declaring it to be unconstitutional could adversely affect those
If the ACA is declared
unconstitutional, it could allow insurers to deny coverage for pre-existing
conditions or charge excessively high premiums for the same.
This could apply to both individual plans as well as employer-based
It is estimated that at least 20 million people would lose insurance coverage
and this figure does not include approximately 3 million people under 26
currently covered under their parents’ ACA plan.
District Court could: uphold the ACA in its entirety, strike down the ACA in its
entirety, prevent the enforcement of the pre-existing conditions protections in
merely the 20 states which have sued or extend this order to the entire country.
is legally unclear what effect the October 22, 2018 order discussed above will
have if the Court upholds the ACA in its entirety.
Copyright © 2018 Ivan Hoffman. All Rights Reserved.
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Ivan Hoffman has been practicing intellectual property law for over 45 years and has written extensively about that topic. (www.ivanhoffman.com). Additionally, Ivan Hoffman has written numerous books about philosophy including “The Tao of Love” and “The Tao of Money.”
This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article is based on United States laws but the laws of other countries may be different. You should consult with an attorney familiar with the issues and the laws of your country. This article does not create any attorney client relationship and is not a solicitation.