Not only is President Trump’s administration in agreement with the lawsuit brought by 20 states attorneys general — and the Texas Public Policy Foundation — against the Affordable Care Act, President Trump is leading the way on developing an alternative plan to present to Congress.
That plan should be simple — empower the states to find solutions on their own. Health care simply isn’t a federal responsibility.
First things first, though. The Trump administration is right — Obamacare is unconstitutional. That’s established by the U.S. Supreme Court itself, in NFIB v. Sebelius, a pivotal 2012 decision. In NFIB, Chief Justice John Roberts rejected the government’s claim that the Commerce Clause of the U.S. Constitution made the Affordable Care Act legitimate; instead, he invented a new argument for the Obama administration — that the ACA was constitutional under Congress’s power to tax.
His reasoning was that the shared responsibility payment, paid by those who didn’t buy qualifying insurance, was a source of revenue for the federal government — and therefore a tax. On this one point, and this point only, the ACA stood.{mosads}
Yet in 2017, the Tax Cuts and Jobs Act set that shared responsibility payment at zero — meaning that it no longer generates revenue. That means it can no longer be considered a tax. Without that tax, by Roberts’ own logic, the ACA no longer has any constitutional basis.
That’s what we at the Texas Public Policy Foundation, along with the attorneys general of 20 states, argued before U.S. District Judge Reed O’Connor in Fort Worth last year, and O’Connor agreed. He further ruled that the individual mandate is an integral part of the ACA, and can’t be separated out.
“The Supreme Court’s only reasoning on the topic thus supports what the text says: The Individual Mandate is essential to the ACA,” he wrote.
That house of cards has collapsed.
Still, though the Justice Department will no longer defend the ACA, some states — and the Democrat-led House of Representatives — will.
As California Attorney General Xavier Becerra claimed in a statement on Monday, March 25, the Justice Department’s decision “threatens the healthcare of tens of millions of Americans across the country — from California to Kentucky and all the way to Maine… Because no American should fear losing health care, we will defend the ACA every step of the way.”
What Becerra fails to mention — and those Republicans who still won’t full-throatedly condemn the ACA seem to miss — is that millions of Americans already have lost their health care, and it’s entirely because of the ACA. Nearly 2 million have dropped their ACA health insurance plans since 2016 because they can’t afford the huge increases in premiums. Millions more put off seeing their doctors because they can’t afford the huge deductibles.
TPPF represents the individual plaintiffs in the case, real families who have been harmed by the ACA. They have lost their chosen physicians and they have lost the affordable, custom-tailored plan they chose before the ACA went into effect. Facing huge deductibles and bank-breaking premiums, what they have now is far more expensive and far more limiting than the plans they had before.
Most importantly, they’re no longer the decision-makers in their children’s health care and their own.
The answer for my clients in Texas — and for Americans in Maine and in Florida and in California — is for states to step up and tackle the issue of health care. The ACA has proven that no one-size-fits-all “solution” from Washington is going to solve the myriad of problems with the health care system. We need the federal government out of our personal health care choices.
So states should craft their own solutions, tailored to their own populations and preferences. California may want a single-payer system. Fine. Here in Texas, where we value individual liberty and choice, our solution might look very different.
But it’s going to take political courage to allow for this seismic shift in thinking about health care. That courage should start with supporting the Trump administration’s logical and legally sound position—the ACA remains indefensible because it is unconstitutional.
And then let the states tackle the job.
Robert Henneke is general counsel and litigation director at the Texas Public Policy Foundation and lead counsel for the Individual Plaintiffs in the pending Texas v. U.S. lawsuit. Follow him on Twitter @robhenneke.