“Chief Justice ACA Questions May Signal Grounds To Grant GOP’s UnConstitutional Petition

WASHINGTON, D.C.–The United States Supreme Court heard arguments on the Affordable Healthcare Act, (ACA) Tuesday.

The ACA was argued by Michael J. Mongan, on behalf of California.  In 2017, Congress didn’t change sub (a) or sub (b); it just reduced the amount of the tax to zero. 5000A still presents a choice: either buy insurance or do nothing. That inoperative provision doesn’t harm anyone, and it doesn’t violate the Constitution., said Mongan. 

Now Respondents insist that the 2017 amendment requires the Court to tear down the entire ACA. But that theory rests on two untenable arguments.

The ACA required all Americans to have coverage either through their employer, Medicaid or Medicare, or the Health Insurance Marketable under the individual mandate.  If the individual failed to obtain healthcare under the mandate, the uninsured were subject to a penalty paid with their individual income tax return.  

In December 2017 the Tax Cuts and Jobs Act changed the tax code, including zeroing out the tax penalty for those who forego health insurance.  The penalty for adults were &695, $347.50 per child, or 2.5% of the taxpayer’s household income. 

Congress zeroed the tax penalty to zero, but left the provision language intact, which makes the entire AAC unconstitutional.   Eliminating the monetary penalty does not eliminate the forcibility of 5000A. 

There are a few states that have their own penalties for being uninsured, the majority of the states do not have penalties for being uninsured as of 2020.

Although in California a new law went into effect on recently resuscitates the AAC’s requirement that people obtain health coverage or face tax penalties.  The new California imposes the same penalties that were zeroed in the ACA, but left standing the monetary penalty. 

There are penalties for being uninsured in Massachusetts, New Jersey, California, Rhode Island, and the District of Columbia. The AAC’s individual mandate itself still exists. But there is no longer a federal penalty for non-compliance.  And since the penalty remains at the State and Local level’s the provisions are enforceable in those States and local jurisdictions. 

Chief Justice Robert’s asked “Well, so, if someone who doesn’t purchase insurance pursuant to the mandate applies for a job down the road and has to fill out a questionnaire asking whether you’ve ever violated a law, which-which box should he check, yes or no?”   

“They also argued that the mandate was not severable from the rest of the ACA, and so the entire ACA should be declared unconstitutional. A federal judge agreed with them in late 2018. An appeals court panel agreed in late 2019 that the individual mandate is not constitutional, but sent the case back to the lower court for them to decide which provisions of the ACA should be overturned.2 The case is likely to eventually make its way to the Supreme Court, and nothing about the ACA will change until that happens.”

The mere fact that an uninsured remains violators of law–makes the entire ACA unconstitutional.  Just because the penalty is zeroed out, doesn’t remove the violation of law, and Mr. Mongan agreed with Justice Robert’s without legal argument.  “And if they had alleged that they were applying for such a job and that the employer was going to use such a form, then that might be
a viable theory of standing,” added Mr. Mongan.

If it Congress’ intent for the uninsured not to face a legal penalty, they would have removed the entire provision and not zeroed the penalty.  

Chief Justice Robert’s asked Mr. Mongan, “Do they have standing? I mean, the — the neighbors will see that they’re not obeying the law. The objectives of Congress will not be fulfilled. In other words, there will certainly be injury to that person, and I wonder why — I wonder if, under your theory, that person would not be able to challenge the law.”

“I think it’s hard for you to argue that Congress intended the entire act to fall … when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts told Kyle D. Hawkins, the Texas solicitor general marshaling the effort on behalf of 18 Republican-led states.

“I think, frankly, that they wanted the court to do that. But that’s not our job,” he said.

But regardless if Congress intended for the entire Act to “fall”, the Act imposes an unknown violation of law on the people—.  

In Goss v. Lopez, the U.S. Supreme Court ruled for the students saying that once the state provides an education for all of its citizens, it cannot deprive them of it without ensuring due process protection.

In this case uninsured people who are 30 or older and don’t have “Catastrophic” health plan–has to apply for an exemption if they don’t have coverage.

“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place,” Justice Kavanaugh told Attorney Hawkins.

Three liberals’ justices have supported the ACA in the past and gave no reason to think they were wavering about whether it should remain in place.

Read the U.S. Supreme Court’s Hearing ussupremecourtaachearingno10  




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