After the Fifth Circuit Court of Appeals ruled in December that the Affordable Care Act's (ACA’s) individual mandate provision is unconstitutional, a coalition of 20 Democratic state Attorneys General, including Massachusetts AG Maura Healey, asked the U.S. Supreme Court to review the appeals court decision as expeditiously as possible.
Last Monday, the Supreme Court seemed to indicate it had heard the AGs; it gave the Trump Administration and other parties opposing the ACA to the week’s end (last Friday) to respond to the AGs’ appeal.
The Fifth Circuit determined that the ACA’s individual mandate is unconstitutional because Congress had eliminated the tax associated with it. Since the individual mandate is not coupled with a tax, it is a command for individuals to purchase health insurance and therefore unconstitutional.
The Appeals Court also directed the lower court to determine the issues surrounding severability – that is, whether the entire ACA should be ruled unconstitutional since the individual mandate is unconstitutional. The Trump Administration has argued at the district court level that only portions of the ACA are severable, while in higher courts it has e argued that the entire ACA should be unconstitutional. The Appeals Court directed the lower court to address the varying positions.
The alternative is for the U.S. Supreme Court to step in and hear the case this term, which some court observers speculate could happen given the accelerated timeline for briefs. MHA is joining with a group of allied hospital associations on an amicus brief to the court in support of the ACA and a timely review in light of the uncertainty raised by the Fifth Circuit decision.