What It Would Take For Texas To Prevail Against Obamacare At The Supreme Court

“You cannot always predict what a justice is going to do based on their questions. But there was a lot more, in this case, very skeptical questioning … mostly coming at Texas.”

By Jill Ament & Caroline CovingtonNovember 11, 2020 11:20 am,

The Texas-led effort to invalidate the Affordable Care Act has reached the U.S. Supreme Court. On Tuesday, justices heard arguments in Texas v. California – a case that’s worked its way through the lower courts since 2018.

Charles “Rocky” Rhodes, a professor at South Texas College of Law in Houston who specializes in constitutional law, told Texas Standard that at the heart of Texas’ case is its argument that the ACA became unconstitutional once Congress zeroed out any tax liability for failing to have insurance.

“So Texas is claiming that because that’s paying nothing, that’s not a tax anymore and therefore it’s unconstitutional; it doesn’t come within Congress’ taxing power,” Rhodes said. “And as a result, [Texas argues] the whole house of cards of the Affordable Care Act, all 900 pages of it, has to fall.”

But to prevail, Rhodes says Texas has to prove that a $0 penalty injures Americans. It also has to prove that current provisions in the ACA are requirements not suggestions. He says that will be difficult to prove now that there isn’t a financial penalty.

The idea is, well, you’re just being told either have to have insurance or you pay nothing. That seems more of a suggestion than coercion,” Rhodes said.

Justices would then have to decide that a lack of an individual mandate invalidates the entire law. During their questioning on Tuesday, Rhodes says they appeared skeptical.

“You cannot always predict what a justice is going to do based on their questions. But there was a lot more, in this case, very skeptical questioning. … The questioning was mostly coming at Texas harder than it was from the California side,” he said.

There are two likely outcomes: if California prevails, the ACA will remain intact unless Congress decides to go through the legislative process of repealing it in the future. If Texas prevails, “the whole Affordable Care Act is gone,” Rhodes said, which would have negative consequences for Americans covered by the law’s preexisting conditions provision, as well as young adults who’ve been able to stay on their parents’ health insurance until the age of 26. It would also end the government-run health insurance marketplace. A final ruling could take months.

Note: A previous version of this story stated that the Supreme Court ruled a portion of the ACA unconstitutional. The court has upheld the ACA, and Congress has reduced the law’s previous tax penalty to zero for those who do not have health insurance as required by the law.

If you found the reporting above valuable, please consider making a donation to support it here. Your gift helps pay for everything you find on texasstandard.org and KUT.org. Thanks for donating today.