The Trump administration’s decision to argue that part of the Affordable Care Act is unconstitutional — the requirement that every American purchase health insurance, known as the individual mandate — raises real doubts about the law’s future.
The Supreme Court initially upheld the mandate, ruling that the penalty for not purchasing health insurance would raise revenue and therefore is allowed under Congress’ taxing authority.
But last year, Congress eliminated the penalty, meaning the mandate would no longer raise revenue. A 20state coalition and the Texas Public Policy Foundation have now been joined by the Justice Department arguing that because the individual mandate no longer satisfies the court’s test, it cannot be a constitutional use of Congress’ authority.
The rest of the law begins to fall apart. For example, the provision that requires insurance companies to insure individuals who are already sick, often called “pre-existing conditions,” depends on the individual mandate to work. If this provision is left in place without a requirement to pay into the system, two negative effects are likely.
Young and healthy people will simply wait until they get sick to buy insurance, creating an untenable burden on the system. Insurers will pull out of the individual market making it impossible for people to find insurance, leaving the most vulnerable with few or no options.
Congress expressly didn’t intend for the law to work this way. It is “the polar opposite of what Congress sought,” Justice wrote in its legal brief.
If the court agrees with Justice’s filing, the ACA will be left as no more than a combination of onerous regulations and burdensome taxes — all of which should be repealed. President Trump is standing by his pledge to repeal Obamacare, even as Congress fails to act.
That’s why we’re asking the courts to state the obvious: The ACA is unconstitutional. The whole thing should be set aside.
This commentary was originally featured in USA Today on June 15, 2018.