inseverable

In December 2018 a federal district court declared the Affordable Care Act (ACA) individual mandate unconstitutional. It also declared the remaining provisions of the act “inseverable,” meaning also invalid. The court didn’t issue a nationwide injunction which would have had the effect of immediately ceasing all aspects of law.

In the district court litigation the Department of Justice (DOJ) didn’t defend the individual mandate. But it did argue that other provisions of the ACA, excluding the guaranteed-issue and community-rating requirements, which were intended to provide affordable health insurance for those with pre-existing conditions, were severable. Now DOJ has informed the Fifth Circuit that it has changed course and agrees with the lower court that the entire ACA was properly invalidated.

While a federal district court struck down the Affordable Care Act as unconstitutional on December 14, the Act and the litigation will continue. The judge didn’t issue a nationwide injunction which would have had the effect of immediately ceasing all aspects of law.

Unsurprisingly, the states defending the law have stated they will appeal this ruling to the Eleventh Circuit. Particularly if the Eleventh Circuit agrees with the lower court the Supreme Court is likely to hear this case though not until its next term beginning October 2019.

The Affordable Care Act individual mandate required uninsured who didn’t purchase health insurance to pay a so-called shared-responsibility payment. In 2012 the Supreme Court held the individual mandate is a constitutional “exercise of Congress’s Tax Power because it triggered a tax.” The Tax Cuts and Jobs Act of 2017 reduced the tax to $0 as of January 1, 2019.