House Urges Justices to Reject Challenge to Obamacare Tax Penalty

The Supreme Court will hear arguments over the Affordable Care Act’s individual mandate during its next term.

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — The House of Representatives filed a brief with the U.S. Supreme Court in the partisan battle over the Affordable Care Act on Wednesday, arguing the Trump administration should stop trying to dismantle the health care law in light of the coronavirus pandemic.

The high court could offer a lifeline to former President Barack Obama’s landmark health care law after Congress nixed the individual mandate tax penalty two years ago and the Fifth Circuit found that it was unconstitutional, though that court declined to invalidate the entire law known as Obamacare.

In a press call after the brief was filed, House Speaker Nancy Pelosi warned against the Supreme Court striking down the ACA in the wake of the coronavirus outbreak. The high court will hear oral arguments in the case during its next term that begins in October.

Pelosi was joined by California Attorney General Xavier Becerra and others who all warned ending the program could leave millions of sick Americans without health insurance at a time when the nation will be recovering from a virus-driven recession. 

“This was about the financial improvements for the American people – fiscal health and physical health,” Pelosi said. “But it was also about prevention and the things that make people healthy…What’s at stake are the provisions of the bill, but also the health of America.”

The House speaker pointed to recent statistics showing over 70,000 Americans dead from Covid-19, the respiratory disease caused by the novel coronavirus, as well as more than a million infected and 30 million without work

“Their lives are being shattered by the virus and the ACA’s protections are more important than ever,” she said. “Yet, in an act of staggering cruelty, the president is still in court trying to tear down the ACA and all of its benefits.”

In 2017, President Donald Trump and the Republican-controlled Congress repeatedly failed to legislatively repeal the entire ACA, but they removed the individual mandate – which stipulates that those who did not obtain health insurance for themselves would have to pay a penalty on their taxes – through the Tax Cuts and Jobs Act.

Texas and a coalition of conservative-leaning states then filed a federal lawsuit in February 2018 to kill Obamacare, citing the Supreme Court’s 2012 ruling that the individual mandate was a valid exercise of congressional power so long as the tax penalty existed. 

The HealthCare.gov website is pictured in October 2018. (AP Photo/Pablo Martinez Monsivais, File)

A group of Democratic attorneys general led by Becerra, as well as the House, stepped in to defend the law after the Trump administration declined to do so.

The red states won at the district court level when a federal judge in Texas ruled the ACA was unconstitutional in light of the tax penalty being removed. The New Orleans-based Fifth Circuit affirmed the decision in part, agreeing that the that the individual mandate was unconstitutional without the tax but declining to striking down the law entirely.

The Supreme Court agreed in March to take up the case, though the justices will not hear arguments until the fall.

“The Trump administration chose to walk away from its legal obligation to defend the ACA,” Becerra said during Wednesday’s press call. “Our goal is simple, save affordable health care and with it, American lives.” 

The House of Representative’s 68-page brief defending the law – authored by House attorneys and lawyers with the Washington firm Munger, Tolles & Olson and the Constitutional Accountability Center – pushed back against arguments made by the states suing to dismantle it.  

“Respondents ask this court to invalidate the entirety of the most transformative public health-care law of the last half-century because they view a single sentence in it as unconstitutional,” the brief states. “To grant that request, this court would have to disregard Congress’s determination that the Act can function without any incentive to purchase insurance and Congress’s evident intent that it continue to do so.”

The filing also emphasized the importance of the ACA during the Covid-19 crisis.

“Although Congress may not have enacted the ACA with the specific purpose of combatting a pandemic, the nation’s current public-health emergency has made it impossible to deny that broad access to affordable health care is not just a life-or-death matter for millions of Americans, but an indispensable precondition to the social intercourse on which our security, welfare, and liberty ultimately depend,” the brief states.

A spokesperson for the Texas attorney general’s office declined to comment on Pelosi’s comments concerning the ACA and coronavirus. The Justice Department did not respond to a request for comment.

While Pelosi and her fellow Democrats expressed fear over how nixing the law could harm sick Americans, others like Stephanie Kennan, senior vice president for McGuireWoods Consulting’s Federal Public Affairs team, expressed concern for how it has impacted the health care system more broadly. 

“It had reforms… so embedded in the system that at this point if they struck the law you would have to go back and figure out a whole bunch of payment issues,” Kennan said in a phone interview Wednesday. “Some [rates] would go up and some would go down. It would be difficult to unwind it from the current health care system.”

She pointed specifically to how disproportionate payments were given to hospitals for those on the low-income, government-run systems. 

“Some of that money has already been cut,” Kennan said. “You’d have to go back and figure out who gets the money and the changes in the payments structures and benefits.” 

“I can’t stress how hard it would be to unwind,” she added. 

Wednesday’s filing by the House comes just one day after CNN, citing an unnamed source, reported Attorney General William Barr expressed concern to White House officials about what the fallout from unraveling the ACA would look like in the wake of the virus.

When asked about these rumors, Becerra said on the press call he’s learned to follow what the Trump administration does, not what they say.

“We’ve seen nothing [suggesting a change of stance] and we’re going to proceed one way or another,” he said. 

President Trump confirmed Wednesday that he is still fully committed to asking the Supreme Court to eliminate the ACA, telling the White House press pool that his administration wants to “terminate health care under Obamacare” and replace it.

In addition to the House filing, the coalition of Democratic attorneys general filed their own brief Wednesday urging the Supreme Court to uphold the law.

“This court should decline respondents’ invitation to impose a breathtakingly broad national policy change under the guise of constitutional adjudication,” the brief states.

A specific date for oral arguments before the high court has not yet been set, but they are likely to happen this fall. A ruling will follow by June 2021.

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