As predicted in these pages barely one year ago (see A.M. Sabino & J.N. Sabino, “Anticipating Another Supreme Court Test for the Affordable Care Act,” 261 New York Law Journal p. 4, cl. 4 (Jan. 24, 2019) (“Anticipating Another Test”)), the Patient Protection and Affordable Care Act (ACA) is once again to be tested before the United States Supreme Court. This was inevitable, once the U.S. Court of Appeals for the Fifth Circuit upheld a lower court decision declaring the health care law unconstitutional. The tribunal’s affirmance was grounded upon the fact that in 2017 Congress stripped the health care law of its taxing proviso, the so-called “individual mandate,” the solitary ground for the ACA’s constitutionality, as affirmed by the high court nearly a decade ago in National Federation of Independent Businesses v. Sebelius, 567 U.S. 519 (2012) (NFIB).
This latest chapter in the health care law’s contentious journey is captioned Texas v. United States, ___ F.3d ___ (No. 19-10011) (5th Cir. Dec. 18, 2019). A petition for certiorari is already pending before the Supreme Court, U.S. House of Representatives v. Texas, No. 19-841, and, as of press time, it appears the Justices have the matter scheduled for conference before the end of this month, at which time we will learn whether there shall be review by the high court or if the matter shall be remanded back to the Texas district judge for further proceedings.
To be sure, and consistent with our earlier writing, our discussion shall assiduously avoid the political and social aspects of the ACA’s survival or demise. Rather, our analysis is properly focused upon the tandem of the two constitutional principles which, to date, have been paramount in the latest challenge to the health care law’s constitutionality: Congress’ power to levy taxes, and the doctrine of severability.
Before proceeding, we further presume familiarity with the lower court opinion that gave rise to the appeal just decided (see supra “Anticipating Another Test”) where District Judge Reed O’Connor of the Northern District of Texas concluded that when the 2017 Congress abrogated the ACA’s imposition of a tax upon those who declined to purchase health insurance, the lawmakers (whether by accident or design) demolished the singular basis of the ACA’s constitutionality recognized by the NFIB court.
In the case at bar, the Fifth Circuit initially noted the “extremely fractured” nature of the NFIB ruling. Circuit Judge Jennifer Walker Elrod proceeded to exposit how a bare majority of justices coalesced around the maxim that the Commerce Clause grants Congress the power to regulate commerce, but not to compel it. See U.S. CONST., art. I, §8. Pursuant to that axiom, NFIB decreed that Congress had exceeded its authority to regulate commerce when it promulgated the ACA. Additionally, the appellate panel noted that the same fragile coalition concluded that the health care law could not be sustained pursuant to the Necessary and Proper Clause. As point in fact, opined Circuit Judge Elrod, the ACA survived the 2012 challenge to its constitutionality for the solitary reason that a different majority of the NFIB Justices declared that the health care law was a constitutional exercise of Congress’ power to tax.
Source: LAW.COM