The Affordable Care Act — will it survive long past its 10th anniversary?
© Getty Images

On the eve of its 10th anniversary, the fate of the Affordable Care Act, which President Obama signed into law on March 23, 2010, twists in the confluence of changing legal, political, and economic winds.

The legal point on which the Act’s future balances, ironically, involves the very provision that once rescued it from near death. Immediately upon its enactment, a coalition of 26 right-leaning states, along with the National Federation of Independent Business, brought suit to challenge the Act’s individual mandate, which directed all US residents to purchase health insurance, or face a penalty. The challengers contended that the U.S. Constitution did not provide any authority for the federal government to require private purchases.

Though careful not to characterize the penalty as a tax when informing the public of the benefits of the Act, supporters responded that the penalty was a tax, which the Constitution’s Taxing and Spending Clause authorizes. Chief Justice John Roberts, famously in some political circles and infamously in others, authored an opinion characterizing the penalty as a legitimate exercise of taxing power.

ADVERTISEMENT

The tax code, though, may taketh what it giveth. President TrumpDonald John TrumpSanders says he wouldn't 'drop dead' if Trump decided on universal healthcare Overnight Health Care: Trump officials lay groundwork for May reopening | Democrats ramp up talks with Mnuchin on next relief deal | Fauci says death toll could be around 60,000 Hillicon Valley: State officials push for more election funds | Coronavirus surveillance concerns ramp up pressure for privacy bill | Senators warned not to use Zoom | Agencies ask FCC to revoke China Telecom's license MORE’s 2017 Tax Cuts and Jobs Act eliminated the mandate penalty. A coalition of nearly the same states that originally challenged the Act attacked again, contending that, shorn of its tax, the mandate could not withstand Constitutional scrutiny. The Trump administration sided with the challengers, and refused to defend the ACA. A group of left leaning states stepped in, contending that the taxing power supported the provision, regardless of whether the government seeks to collect the tax.

In December 2018, a federal judge in Texas agreed with the challengers and ruled that the entirety of the ACA is now unconstitutional. After legal machinations that saw the case briefly visit the Supreme Court, it is now back with the original judge for further consideration. While few legal scholars believe the challenge will be successful, one federal judge has already so ruled, and the case is back in his hands.

Political views dictate not only which states will attack or defend the ACA, but whether individuals support it. Most Republicans oppose the Act, while most Democrats support it. Position appears not entirely dependent on one’s views of the Act’s provisions. A 2017 Morning Consult survey revealed that over a third of the U.S. population does not know that ObamaCare and the Affordable Care Act describe the same set of laws. As nighttime talk show host Jimmy KimmelJames (Jimmy) Christian KimmelThe Hill's Morning Report - Presented by Facebook - Trump: Tough times but progress being made Lady Gaga, WHO announce 'One World: Together at Home' TV special Adam Sandler debuts new coronavirus quarantine song on 'The Tonight Show' MORE famously demonstrated with on-the-street interviews, both in 2013 and again in 2017, an alarming number interviewees respond to the question, “Which do you prefer, ObamaCare or the Affordable Care Act,” not that the phrases describe the same law, but with a preference based on political affiliation. A significant number of us evaluate the ACA not as a set of laws designed to make health care more accessible and affordable, but as a political or social construct.

The ACA’s breadth and complexity may be at work in confusing us. To restructure insurance markets, mandate coverage, and, yes, impose penalties, the ACA had to work its tentacles into the crevices of the Public Health Service Act, the Social Security Act, the Health Insurance Portability and Accountability Act, the Internal Revenue Code, and other big chunks of the U.S. Code.

Those tentacles have also managed to significantly change the delivery of American health care, and the payment for it. The combination of the expansion of Medicaid, the creation of exchanges through which Americans can purchase subsidized insurance, and protections for consumers has brought some 30 million more Americans into the folds of the insured. And, although the ACA’s impact on reducing the cost of health care insurance remains contentious, provisions like enabling adult children to stay on their parents’ policies until age 26 and barring coverage refusal for pre-existing conditions are popular among all political groups. What will transpire if we like a law’s provisions, but not its name?

ADVERTISEMENT

President Trump continues to pledge the ACA’s repeal and to promise to replace it with “phenomenal health care.” But, he hasn’t yet, now three years into a four-year term, even hinted at a single provision in the phenomenon.

We might hazard a guess that he is not sufficiently familiar with the ACA to begin even to outline a replacement. During his 2016 campaign, then candidate Trump complained, “all of my employees are having a tremendous problem with Obamacare,” apparently not knowing that virtually none of them received insurance via the ACA (his companies provided the coverage). There is no indication that he has since educated himself on the complexity of America’s health care system.

We are in no position to predict whether the ACA will survive long past its 10th anniversary. If it does not, the seas for American health care will change again. In which direction remains to be seen.

John Thomas is a professor at the Quinnipiac University School of Law.