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Updated: Dec 13, 2019

Posted By Bob Dunlevey of Taft Law, Tuesday, April 16, 2019

The Trump Administration has just gone on the record stating that the entire Affordable Care Act should be struck down in a pending Court case destined for appeal – Texas v. United States.  On Dec 14, 2018, a Federal District Judge ruled that because Congress eliminated the penalty on individuals not having ACA compliant healthcare coverage (the “individual mandate”), the ACA “can no longer be sustained as a constitutional exercise of Congress’ tax powers.”   In 2012, the Supreme Court ruled that the individual mandate was constitutional because of Congress’ power to tax.  But, when the fine for not having insurance was eliminated, there was no taxing basis to uphold the law.

The Department of Justice has just formally announced that it supports the position of the District Judge finding the entire ACA unconstitutional because if part of the ACA fails then the rest of it should be ruled invalid as well. 

The case is destined for the Federal Fifth Circuit Court of Appeals in New Orleans and may see as a final destination the U.S. Supreme Court.  These proceedings may take more time than is left in President Trump’s current term.  In the meantime, ObamaCare remains in effect and both individuals and employers need to comply.  Employers still have to offer healthcare coverage to at least 95% of full-time employees and properly report offers of coverage as elements of compliance.  For the 10 million individuals with expanded ACA Medicaid and the 11 plus million utilizing the ACA exchanges, coverage will go on for now.

Those most familiar with the legal arguments advanced in Court by the coalition of 20 States believe that the decision will be struck down by the Court of Appeals even though it is a very conservative court.  If this be true, the Trump Administration’s appeal to the U.S. Supreme Court may not be accepted.  But, if the Court of Appeals somehow upholds the Trial Judge’s position that the ACA is unconstitutional, the case will surely be heard by the Supreme Court.

Because healthcare is such a volatile issue and Congress is so divided on the topic, it is doubtful that a legislative solution will be found before the 2020 elections.  Watch for more developments in the months to come, but don’t count on the ACA being cast aside for now.

For further information about this and other matters, use your Legal Services Plan and contact Bob Dunlevey, Board Certified Labor & Employment Law Attorney at Taft/Law - (937) 641-1743. Be sure to identify yourself as a DRMA member.


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