To summarize, there have been three judges in these lower federal Fifth Circuit cases who have held the ACA's individual mandate unconstitutional now. All three are members of the Federalist Society. In each case, the votes of all three accurately reflect the opinions of the Federalist Society.
One additional judge dissented. She is not a member of the Federalist Society and her opinion does not look like the opinions of the Federalist Society. The dissenting judge is Judge Carolyn Dineen King on the Fifth Circuit panel. Judge King pointed out the undeniable fact that the true legislative history of the ACA shows that Congress never amended or repealed the individual mandate provision. Congress did one thing only; it reduced the tax penalty for failure to comply with the mandate to zero dollars. Command without coercion is not unconstitutional in the eyes of the dissenting judge.
The effects of the lower federal Fifth Circuit rulings perhaps do not change the outcomes of their persuasive capacities if any. Regardless, the collective effects of these lower court decisions are a catastrophe causing uncertainty in healthcare and in every other area affected by the Affordable Care Act. The other areas affected by the ACA include financial, regulatory, and commercial planning. The introduction of uncertainty in these areas is a fact, not a contest.
State and local government agencies rely on billions of dollars in aid under the ACA each time they set their budgets. Government budget planning can take months and even years. Insurance companies too plan for years in advance based on the ACA. Carriers must decide far in advance of implementing their decisions of how and whether to ask for any changes in regulated health insurance premiums and health insurance markets.
The pending catastrophe also includes consumer and individual life-changing decisions such as whether to move, to change a job, to start a family, or to care for an aged parent. Without being able to rely on healthcare required by the ACA, individuals as well as businesses, and state and federal government agencies, face uncertainty whether their reliance on the ACA has been misplaced and the uncertainty of what if anything will replace the availability of healthcare insurance under the ACA.
In short, after the lower court decisions in the federal Fifth Circuit, all healthcare decisions will have to be made without knowing whether the ACA will ultimately be held valid by judges, or not. As Judge King put it in her dissenting opinion in the Fifth Circuit: "It is unlikely that Congress would want a statute on which millions of people rely for their healthcare and livelihoods to disappear overnight with the wave of a judicial wand." Put another way, "it is difficult to imagine that this is a matter Congress intended to turn over to the judiciary."
And now it's on to the U.S. Supreme Court once again, and let's see if they have the votes there to "repeal, defund, delay, or otherwise amend the ACA."
Continued from Claims and Issues Blog on January 15, 2020 and Claims and Bad Faith Law Blog, here, on January 16, 2020. Adapted by the author from his new Chapter 18E forthcoming in the Spring of 2020 in the book, CATASTROPHE CLAIMS: INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS (Thomson Reuters). Please Read The Disclaimer. ©2020 Dennis J. Wall. All Rights Reserved.
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