Rejecting the advice of his attorney general and his secretary of Health and Human Services, President Trump decided to file a brief urging the federal court of appeals to declare unconstitutional the Patient Protection and Affordable Care Act. This is inexcusable and inexplicable, both as a matter of health policy and as an issue of law.
By any measure, the Affordable Care Act has been a success. Declaring it unconstitutional would have disastrous consequences for our health care system. An estimated 22 million people would lose their health insurance coverage if the Trump administration succeeds in having the law struck down. Moreover, the act instituted many long overdue and highly desirable reforms of the health insurance industry.
For example, thanks to the Affordable Care Act, health insurance companies can no longer deny health insurance because of preexisting conditions. Many years ago, I had cancer – and I was then unable to get health insurance when I moved to a new position at the University of Southern California Law School.
Also, no longer can insurance companies charge higher premiums to those with chronic conditions, like epilepsy or diabetes. No longer can insurance companies put caps on annual or lifetime benefits. Before the Affordable Care Act, it was estimated that 54% of consumer bankruptcies were because of health care costs.
In light of all of this, it’s easy to see why Secretary of Health and Human Services Alex Azar opposed the Trump administration trying to end the Affordable Care Act. Attorney General William Barr likely did so because the legal argument against it has no merit.
The claim is that Congress, by repealing the individual mandate, made the entire Affordable Care Act unconstitutional. As originally enacted, the Affordable Care Act required that everyone purchase health insurance or pay a penalty. This was to ensure that people did not wait until they were sick to buy health insurance. Health insurance is affordable only if there is a large risk pool that includes healthy individuals.
When the Affordable Care Act was challenged in court, the only issue was whether Congress had the authority under the Constitution to enact the individual mandate. In 2012, the Supreme Court, in a 5-4 decision, upheld the constitutionality of this provision. Chief Justice John Roberts wrote the opinion for the Court and concluded that the individual mandate was a valid exercise of Congress’s power to tax and spend for the general welfare.
In 2017, as part of the tax reform bill, Congress repealed the individual mandate. Earlier, Congress considered, but rejected, a bill that would have repealed the entire Affordable Care Act. The Affordable Care Act was 2,600 pages long and Congress has rescinded just one provision.
The brief filed by the Trump administration says that repealing that provision makes the whole statute unconstitutional. That truly makes no sense. Congress initially could have adopted the Affordable Care Act without the individual mandate, and that unquestionably would have been constitutional. So, Congress can choose to repeal that provision without putting the rest of the statute in jeopardy.
The Trump brief relies on a legal principle that is totally irrelevant here. If a federal court declares a provision in a law to be unconstitutional, then the court must decide if that is enough to render the whole law invalid. The question is whether the legislature would have adopted the rest of the law without the invalidated provision. But that has no application here because no court declared any provision to be unconstitutional. Indeed, Congress’ intent could not be clearer: It considered but rejected, repealing the whole law even though it repealed a particular provision.
The weak argument put forth by the Trump administration makes me confident that the federal appeals court and the Supreme Court will once again uphold the Affordable Care Act. But it does make me wonder why President Trump would do this and put the health care of so many in jeopardy.
The only explanation is that the Affordable Care Act, otherwise known as Obamacare, has been anathema to many in President Trump’s Republican base. When confronted with a choice of appealing to his conservative base and doing what is best for the country, once more, President Trump made the wrong decision.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at email@example.com.