The Affordable Care Act keeps coming up during the opening day of the Barrett hearings because the Supreme Court will hear a case Nov. 10 that potentially could put parts—or all—of the Obama-era health care law in jeopardy.
The Supreme Court previously preserved the ACA in decisions in 2012 and in 2015, so how is this an issue again? A group of Republican-led states found a new tactic for challenging the law after Congress in the 2017 tax overhaul law reduced to $0 the penalty for the ACA mandate that most people carry health insurance.
Chief Justice John Roberts in 2012 said the penalty for going without health insurance could be construed as a tax that Congress had the constitutional authority to levy. Now, without any financial penalty, the mandate can no longer be upheld as a constitutional exercise of Congress’s taxing power, the GOP states have argued.
A federal appeals court agreed with the argument last year and invalidated the insurance mandate, but it didn’t decide whether the rest of the sprawling health law could remain in place.
The Trump administration is no longer defending the law in court and is supporting the Republican challengers instead. A group of Democratic states has intervened to defend the health law in court.
If the Supreme Court were to throw out the entire law, it could create considerable upheaval in the health care system, though many court watchers believe that such a sweeping outcome isn’t likely. And a ruling that just strikes down the insurance mandate may not have much practical effect, given that there are no longer any financial penalties for forgoing coverage.