American Constitution Society: Health Care Opponents are Rewriting History to Challenge the Affordable Care Act in Court

WASHINGTON, Oct. 23 -- The American Constitution Society issued the following news release on Oct. 22:

Just days after the November 2020 election, the U.S. Supreme Court will hear the latest lawsuit attempting to strike down the Affordable Care Act (ACA) and deprive millions of Americans healthcare coverage.

The lawsuit - brought by the Trump administration and Republican attorneys general - hinges on "an alternative history divorced from reality" and the "Supreme Court should see through this calculated revisionist history which cannot hold up against the facts and the law", according to an Issue Brief published today by the American Constitution Society.

The Issue Brief, "Backdoor Repeal: How Health Care Opponents are Rewriting History to Challenge the Affordable Care Act in Court", is authored by Joel Dodge, Staff Attorney for the Judicial Strategy Team at the Center for Reproductive Rights.

ACA opponents argue that when Congress reduced the individual mandate's tax penalty to $0 in 2017 as part of the Tax Cut and Jobs Act they meant to eliminate the entire ACA. Dodge's Issue Brief discredits this argument by providing extensive legislative history to refute this claim.

"Fortunately, the answer to what Congress had in mind for the ACA in 2017 is readily discernible from what Congress actually did in 2017. As the parties defending the law and their amici explained to the Supreme Court, a close look back at recent legislative history leaves no room for doubt: Congress opted to eliminate the mandate penalty while retaining the rest of the ACA," Dodge writes.

The case, California v. Texas, is the third existential threat to the ACA to reach the Supreme Court in the last eight years, and the first since Justices Neil Gorsuch and Brett Kavanaugh were appointed to the Court by President Trump. With the potential for a third Trump Supreme Court appointee to be rammed through the Senate in the days before the 2020 election, the ACA may be in even graver legal jeopardy.

When one provision of a law is unconstitutional - as happened with the ACA in 2012 in NFIB v Sebelius - the courts must determine whether it can be "severed" from the rest of the law. To do so, the Court must consider the intent of the Congress that created the constitutional problem to determine if they would prefer the rest of the law to stand without the unconstitutional provision, or if they would want to get rid of the whole statute.

That should be an easy question to answer in California v. Texas, according to Dodge.

"There simply is no evidence that Congress intended to repeal the bulk of the ACA when it enacted the Tax Cuts and Jobs Act of 2017," he writes. "Perhaps this is why forty-seven Democratic members of the U.S. Senate filed an amicus brief at the Supreme Court explaining that the legislative history around the repeal of the individual mandate tax penalty demonstrates Congress's intent to retain the rest of the ACA, and not a single Republican senator filed any brief in response to argue otherwise."

Dodge further argues that the backdoor repeal attempted by the Trump administration and the Republican attorneys general requires a complete rewriting of history and a disregard for Congress as a co-equal branch of government.

"Simply put, this would be a breathtaking judicial bailout for the opponents of the ACA, awarding them with a policy victory that they lacked the votes to achieve through the democratic process. Yet if facts, common sense, and judicial humility manage to overcome ideology, the health care that millions of Americans rely on ought to remain secure," he writes.