By John Aloysius Cogan, Jr.
The Congressional Democrats and the Biden administration need not wait for the Supreme Court to determine the fate of the Affordable Care Act (ACA) in California v. Texas; they can take charge of the case today by enacting and signing into law overriding legislation.
Since the threat to the ACA is based on the interpretation of a federal statute — the ACA’s “inseverability clause” — Congress is within its rights to take charge of the case. Why? Because courts are not the final word on the meaning of a statute, Congress is.
Article 1, Section 1, of the Constitution, vests all legislative powers in Congress. As Chief Justice John Roberts has recognized, “the final say on a statute is with Congress,” not the courts. To be clear, overriding legislation is not like a reversal by an appellate court. Instead, overriding legislation provides courts with Congress’ superseding instructions as to how a statute should be interpreted going forward.
Now, to understand how overriding legislation can save the ACA, we must go back to the Tax Cuts and Jobs Act of 2017 (“TCJA”) — the root of California v. Texas and the source of the statutory kerfuffle that put the ACA at risk.
Following Congressional Republicans’ dramatic failure to repeal the ACA in the summer of 2017, the GOP-led Congress settled for a provision in the TCJA designed to weaken the ACA’s individual mandate — the requirement that most Americans buy health insurance or pay a penalty. Rather than repeal the mandate, Congress reduced the penalty for violating the mandate to $0. Although a far cry from a full ACA repeal, former President Trump nevertheless declared victory, claiming “the individual mandate is now gone.”
But the mandate was not gone — only the mandate’s tax penalty was gone. For opponents of the ACA, however, this was enough to launch a statutory attack on the ACA.
In February 2018, Texas, joined by more than a dozen Republican states and two individuals, filed suit, making a two-part argument to take down the ACA.
First, they argued that TCJA left the ACA’s individual mandate unconstitutional. In 2012, the Supreme Court found the mandate constitutional as an exercise of Congress’s Tax Power because the mandate penalty looked like a tax and raised revenue. Once the TCJA reduced the mandate penalty to $0, the plaintiffs claimed the mandate was no longer constitutional because its penalty no longer raised revenue.
The plaintiffs’ second, more significant argument was that the unconstitutional mandate could not be severed from the rest of the ACA. They argued that a section of the ACA’s text — 42 U.S.C. § 18091, the so-called “inseverability clause” — made clear that Congress viewed the mandate as essential to and inseverable from the rest of the ACA. Under this theory, once the court struck the mandate, the rest ACA also had to go.
Legal scholars from both the left and the right decried the plaintiffs’ arguments as “absurd.”
Nevertheless, those arguments won the day in the district court. The judge ruled that the individual mandate was unconstitutional, that it could not be severed from the rest of the ACA, and the entire ACA should be struck down. The judge, however, stayed final judgement pending appeal. The Fifth Circuit agreed that the mandate was unconstitutional but remanded the case for further analysis. The case then moved to the Supreme Court.
At oral argument last November, the justices seemed to agree that the mandate is unconstitutional. However, a majority of justices appeared to reject the plaintiffs’ statutory claim that the entire ACA must be struck down.
While this raises hope that the ACA will survive, uncertainty — and fear — remains. A Court decision siding with the plaintiffs would be catastrophic. More than 20 million Americans would lose their health coverage. Over a hundred million Americans with pre-existing medical conditions could find health coverage unaffordable or unavailable. Many seniors would pay more for Medicare prescription drugs. Medicare funding would be in jeopardy.
A legislative override can quickly eliminate the uncertainty and fear.
Congress could issue overriding legislation to save the ACA any number of ways. Congress could:
- repeal the mandate,
- repeal the ACA’s “inseverability clause,”
- enact legislation that makes clear that the mandate is severable from the rest of the ACA,
- raise the mandate penalty to an amount that generates revenue, or
- some combination of the above.
Any of these could save the ACA. But a successful override will require two more things.
First, Congress must expressly identify the legislation as an override. Courts have a hard time identifying overrides. As I have argued elsewhere, Congress already passed legislation that overrides the district court decision that underlies California v. Texas. But that legislation’s override provisions, like those of many overrides, are nearly invisible. Overrides are hard to see because Congress often fails to clarify that a piece of legislation is an override. To ensure a successful California v. Texas override, Congress must be sure to include language in the override that expressly states the intent and extent of the override.
The second requirement is more difficult. Democrats must overcome the Senate’s filibuster. Senate Republicans can stop any override using the Senate’s 60-vote filibuster rule. Despite repeated Republican assertions that the ACA is safe during Justice Barrett’s confirmation hearing, bipartisanship on any Biden administration initiative — including an ACA legislative override — is unlikely. Absent bipartisanship, Senate Democrats could be hemmed in by a filibuster on an ACA legislative override. Hope, however, remains. Democrats could attempt an end-run around the filibuster, like budget reconciliation. But the reconciliation process is quite limited — it applies only to legislation that affects spending, revenues, and the federal debt limit. Congress could add a nominal penalty to the mandate under budget reconciliation (because it would affect federal revenues), but it could not use reconciliation to simply repeal the mandate.
To repeal the mandate or the inseverability clause, Congressional Democrats would have to address the filibuster directly. They could change Senate rules to eliminate or circumscribe the filibuster. Given the Biden administration’s growing impatience with Republican obstreperousness, a filibuster rule change may be possible.
An override could bring a speedy and happy end to California v. Texas. But the beauty of the legislative override extends well beyond any single case. The Biden administration could use legislative overrides to address any number of incorrect judicial interpretations of federal health laws. For example, an override could correct the Court’s overly broad application of ERISA’s preemption rules, illustrated in Gobeille v. Liberty Mutual Insurance Co. Congress could pass an override to prevent the Religious Freedom Restoration Act from becoming a tool of discrimination. Indeed, an override could even be used to stop the next anti-ACA case before it reaches the Supreme Court.
John Aloysius Cogan, Jr. is an Associate Professor of Law and Roger S. Baldwin Scholar at University of Connecticut School of Law.