At Tuesday’s hearing on Texas v. Azar, pursued by 18 states and two individuals, questions by two judges signaled that the Affordable Care Act (ACA or ObamaCare) could be in peril.
Seven months ago, District Judge Reed O’Connor held all of ACA to be unconstitutional. Since Congress zeroed out the tax penalty for failing to buy ACA-compliant insurance, the sole support for the otherwise-unconstitutional individual mandate—the taxing power of Congress—was gone. The guaranteed issue, community rating, and “minimum essential benefits” requirements would make ACA insurance unaffordable unless low-risk persons were compelled to purchase it, according to ACA architects and advocates. Hence, ACA would not have passed without the individual mandate, which is thus not severable from the rest of the law, ruled Judge O’Connor.
The Trump Administration has declined to defend the constitutionality of the law.
Intervenors—states led by California, along with the U.S. House of Representatives—argued in favor of the law. They contend that it is the Court’s duty to uphold the constitutionality of laws passed by Congress if at all possible.
In its amicus brief supporting plaintiffs, the Association of American Physicians and Surgeons (AAPS) argued that the Appellants lacked standing to bring the appeal as they could not stand in the shoes of the United States.
The Court asked intervenors how they could assert standing to support the law, especially while complaining that Plaintiffs lacked standing to challenge it.
Judges also asked how the Court could determine congressional intent other than by reading the law it passed, and whether persons were simply free to disregard a law saying they “shall” do something, as long as they don’t suffer a penalty.
For more information, see press release.