Romneycare vs. Obamacare, the court will decide


The Supreme Court may soon determine the fate of the Affordable Care and Patient Protection Act (ACA), commonly known as Obamacare. 

First, some basic facts.

Ninety-eight percent of Massachusetts residents today have health insurance, thanks to the passage of a 2006 state law known as an Act Providing Access to Affordable, Quality, Accountable Health Care. Governor Romney signed the measure, while vetoing eight provisions he thought were too costly. The legislature easily overrode the vetoes, so that residents without health insurance could sign up on the Commonwealth Health Connector Authority, usually known as the Commonwealth Connector.

Four years later, Congress modeled the federal Affordable Care and Patient Protection Act (ACA) on the Massachusetts statute. Both required all citizens to acquire health insurance or pay a penalty, known as a mandate. In 2012, in a challenge to the constitutionality of the ACA, the Supreme Court, by a bare majority of 5 to 4, upheld the ACA as within Congress’s authority under its taxing power.  It rejected the argument that congressional authority also had it within its power to regulate interstate commerce.

Two years ago, Congress passed the Tax Cuts and Jobs Act, which every Democratic member of the House and Senate opposed. In addition, 13 Republican members of the House and one Senate Republican also voted against it. Included in the law was a provision that cut to zero the penalty for not having health insurance, thus ending the mandate.

The question now is whether Congress’s authority under its taxing power, which was the basis of the 2012 Supreme Court decision validating the law, has been undermined. If there is no tax to pay, there is no mandate, and without a mandate, the law is no longer valid.

Eighteen Republican-led states and two individuals persuaded a federal judge in Texas that the law is no longer a valid exercise of congressional authority. A panel of appellate court judges agreed, but declined to rule on whether the rest of the law would stand. Instead, they asked the Texas lower-court judge to determine whether the end of the mandated tax was “severable” from the rest of the law, leaving the insurance programs intact. 

On Jan. 3, the House of Representatives, 20 Democratic-led states, including Massachusetts, and the District of Columbia decided not to wait for a final appellate verdict. They filed an emergency petition to the Supreme Court, asking for a hearing before the appeals court settled the severability matter.  

They argue that the Internal Revenue Service still lists the tax on its books, even if it is not collecting any money. Moreover, Congress did not disturb the ACA when it passed the Tax Cuts and Jobs Act.  

Besides, an abrupt end of Obamacare will mean “millions of Americans who rely on it for health coverage will not be able to make important life decisions about what jobs to take or where to live secure in the knowledge that those choices will not deprive them and their families of affordable health insurance. Insurance companies will not know whether they should continue to invest in providing insurance on ACA exchanges, and at a minimum will have to raise insurance rates to account for the risks of market upheaval if the ACA is struck down,” according to the petition filed with the court. Thus a fast-track hearing is imperative.
The justices scheduled a conference on Jan. 17 to determine whether they will hear the case. If five agree, they could schedule an emergency hearing to determine the fate of the ACA as early as February. Or they could decline the petition, and wait for the appeals process to conclude, which could take months.  Or they could “relist” the case to talk about it at a future conference.

It is clear why Democrats want an answer to the severability question: If the law no longer exists, some 20 million Americans will lose their Obamacare health insurance. This immeasurable loss to so many people will make a powerful argument for Democrats during the presidential campaign this year.  

After all, Republicans have been arguing since the ACA’s passage nearly 10 years ago that the law must be repealed, though they have been unable to find a replacement. Nor do they have one now.

Yet, as noted at the beginning, Massachusetts stands alone in having the only state-created health insurance program. If the ACA falls, its residents will not lose their insurance, as millions of Americans may well do. They can thank the foresight of Governor Romney and the 2006 legislators who created the Commonwealth Connector.


Jack Fruchtman, a part-time Aquinnah resident, taught constitutional law, politics, and history for over 40 years.


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