thepoliticalpatient:

Last night, a Texas court came back with a decision on a case that has been going on for a little while. 20 red states are suing the federal government with the claim that, now that the individual mandate is gone, the rest of the ACA is illegal and must go too.

For brevity I’m not going to get too deep into the background of why they are able to make this claim, but I did elaborate on this in this other post.

The Texas court came back last night with a decision stating that they believe the individual mandate and protections for people with pre-existing conditions are now illegal, but other portions of the ACA such as the Medicaid expansion are not. Luckily, Texas doesn’t get to make decisions for the rest of us, so nothing is going to change unless the case makes its way through the Supreme Court and they come to a similar conclusion.

Here’s the crux of their argument:

• When the current Congress repealed the individual mandate in the 2017 tax bill, they did not actually repeal the mandate entirely. Technically, we are still mandated to buy health insurance – but the punishment for breaking this rule is now a fine of $0. There is precedent for this actually being illegal, so I will not be surprised if the SCOTUS does rule that the current “mandate” is illegal and must go. But that has basically zero effect.
• Their argument regarding pre-existing conditions is that this portion of the law is “unseverable” from the individual mandate – indeed, the mandate was imposed in order to pay for covering people with pre-existing conditions, and there is evidence that healthcare will go into a death spiral now that the mandate is gone.

Here’s why this is baloney, in my (layman) eyes:

• If repealing the individual mandate made remaining portions of the ACA illegal, then Congress should not have been allowed to repeal the individual mandate. It was Congress’s repeal of the individual mandate that put us into the situation where we have an illegal combination of laws on the book, so the repeal is the action that was illegal and should be overturned.

Here are some alarming details about the process by which this is happening:

• The Trump administration’s Department of Justice was the defendant in this case. The DOJ has a mandate to defend the laws that are on the books even if they disagree with them. They did not do this.
• It’s tempting to be enraged by this, but it’s worth noting that the Obama administration already set this bad precedent by not defending the Defense of Marriage Act when it was challenged in the SCOTUS. (I’m not saying that DOMA was a law worth defending, just that there is already precedent for the DOJ shirking their duty to defend laws that are on the books.)
• The DOJ will also be the defendant in the ACA case when it escalates to the SCOTUS. But since they’re not going to do their job, a coalition of 14 blue states are going to step in to fight on behalf of the ACA.
• There is a 5 to 4 conservative majority on the SCOTUS right now. Supreme Court justices are not supposed to rule in a partisan way, but my faith in government and checks and balances is at an all time low so I’m not optimistic.
• There is nothing you or I can do to fight or influence this; unlike Congresspeople, court justices do not report to us; we do not elect them, we cannot kick them out, they are in it for life.
• This is very unlikely to get through the SCOTUS within the year. Meanwhile, insurers are trying to set their premiums for the 2019 plan year, and often use uncertainty about future health policy as an excuse to raise premiums.
• I honestly don’t understand how the "uncertainty" excuse could fly in this case, given that the potential outcomes here are either 1.) status quo remains or 2.) they’ll be able to stop covering us expensive sick people. So costs would presumably either stay the same or fall for insurers. But insurers are profit-motivated parasitic money grabbers, so they’ll probably go ahead and use the “uncertainty” excuse to raise prices on us anyway.

Here’s my practical advice for you:

• 27% of Americans who are too young to qualify for Medicare have a pre-existing condition that could preclude them from getting insurance on the individual market if ACA protections go away. If you, like me, are in this group, here are your options:
• Get insurance through an employer. Any employer with 50 or more employees is still required to offer you health insurance. Regardless of what happens with this court case, insurers cannot deny you coverage based on health status in the large-group (i.e. employer) market.
• If you are too sick to work, your income is likely low enough to qualify for Medicaid, especially if you are in an expansion state. If you are not already on Medicaid, please find a professional broker to help you determine if you are eligible ASAP.
• I know a little bit about this topic but probably not nearly enough to help you – but you can still reach out to me if you want, and I will attempt to help.
• If you do not qualify for Medicaid and you cannot work, keep a very close eye on this case. I don’t mean to be an alarmist, but if pre-existing conditions come back, your only option may be to immigrate out of this ass-backwards country. If it was me, I would make sure to have my passport now and would start doing some research about immigration law to various countries. Some will not accept you if you are too sick, as they’ll view you as a strain on their healthcare system… 😐

Most of all, DO NOT forget this:

• Trump is clueless about healthcare and had no plan except for destroying the ACA. However, he continually promised that, whatever his administration did to healthcare, protections for people with pre-existing conditions would remain in tact. In February, 2016, he stated: “I want to keep pre-existing conditions. I think we need it. I think it’s a modern age. And I think we have to have it.”
• Trump’s DOJ is now breaking that promise by refusing to defend protections for people with pre-existing conditions in court.
• The current legal challenges to the ACA are not inherent to the ACA itself; they come about as a result of the repeal of the individual mandate that the current Congress imposed upon us in 2017.
• Removing these very popular protections for people with pre-existing conditions is therefore not an unavoidable, necessary action. We could have not gotten into this situation in the first place by leaving the individual mandate in place.
• In actuality, this was probably the plan all along. They couldn’t secure the votes to repeal more of the ACA than just the individual mandate, but they knew they could tear more of it down in court later if they tore the individual mandate down in Congress first. All the while, they promised we would be protected. This is some of the dirtiest politics I’ve ever seen.