Kerby Anderson

The future of the Affordable Care Act, often called Obamacare, is in legal limbo. A three-judge panel of the Fifth Circuit Court of Appeals essentially declared the law unconstitutional but sent it back to the federal district court to evaluate its status.

Two years ago, the Attorneys General of a number of states, led by Texas Attorney General Ken Paxton, asked a federal judge in Fort Worth to strike down the law as unconstitutional. Their argument was simple. The bill was declared constitutional by the Supreme Court because the individual mandate was considered a tax. Since Congress has the power to levy a tax, it was constitutional.

But Congress removed the penalty (actually merely zeroed out the penalty), and so the argument being made was that Obamacare’s foundation collapsed by no longer requiring the penalty, which the Supreme Court called a tax. U.S. District Judge Reed O’Connor in December 2018 ruled the entire law unconstitutional. Now a year later, the judges in the Fifth Circuit Court seem to agree. But they sent the ruling back to the first judge to answer a key question.

That question is the issue of “severability.” If part of a law is unconstitutional, does that mean that all of the law is unconstitutional? Or does that mean that you can sever part of the law and still maintain the rest of the law? The circuit court judges ruled that the opinion of the district judge needs to “do the necessary legwork” in order to reach his conclusions.

All of this means that the law is in a bit of legal limbo. It also means that it could indeed be struck down and declared unconstitutional. That also means that Congress needs to get serious about crafting legislation that could be put in its place if it no longer exists. We should ask our members of Congress (as well as people running for Congress in 2020) what they propose to do about this.