The US Supreme Court is hearing a challenge to the Affordable Care Act (ACA) this week. Brought forth by the Texas Public Policy Foundation and attorneys general from 20 other states, the case concerns the constitutionality of the ACA’s individual mandate.
If the Supreme Court rules the individual mandate is unconstitutional, the court will overturn a major part of the law. According to polling conducted by Heart+Mind Strategies, 40 percent of Americans think we should replace the ACA with a system that prioritizes transparency and cost-effectiveness. Another 38 percent of Americans believe we should fix the ACA.
We sat down with Robert Henneke, lead counsel for the individual plaintiffs in the case and general counsel for the Texas Public Policy Foundation, to learn more about the potential impacts and what state think tanks should be doing as we wait for the court’s decision.
Robert: If the ACA is struck down in its entirety, it will restore the autonomy for Americans to have more direct control over their healthcare choices and the direction of their care. The federal regulatory dominance of healthcare through the ACA continues to result in a broken system where millions of Americans struggle with the high cost of health insurance. The ACA’s high deductible plans require Americans to pay out of pocket for most of their healthcare needs—despite having insurance. Often, these plans limit choice in healthcare providers. This case challenges the ACA and its unconstitutional individual mandate that forces Americans to buy health insurance mandated by the federal government.
Robert: When the Supreme Court originally considered the ACA in 2012, the majority opinion did find that the individual mandate was unconstitutional. However, the court found that because the penalty for anyone who did not buy health insurance generated revenue for the federal government, the mandate could be construed as an exercise of taxation power. That tax construction is what the court used to justify not striking down the ACA. In 2017, when Congress passed the Tax Cuts and Jobs Act, lawmakers set that tax penalty at zero. Since the mandate no longer generates revenue, this calls into question the 2012 decision and is why the Supreme Court is reviewing another challenge to the law.
Robert: The Texas Public Policy Foundation has been involved in issues related to the federal government’s involvement in healthcare since the ACA was passed in 2010. One of the ways TPPF first responded to the ACA was when we partnered with Senator Ted Cruz and created our policy center on Tenth Amendment advocacy. But more specific to this case—we noticed what was missing was the perspective of ordinary Americans who suffer under the status quo of the ACA. We wanted to represent these people who’ve been hurt by being forced to purchase expensive health insurance they don’t want. The case originated from a coalition of Texas-led states that we joined as a co-plaintiff.
Robert: TPPF is representing Neill Hurley and John Nantz—two individuals who are suffering under the regulatory burden of the ACA. Neil is in his early forties and is married with two kids. He’s a small business owner who needs healthcare not just for himself, but for his entire family. Neill’s ACA premium shot up by 75 percent in just two years, and his family deductible reached $12,000. His family lost their doctors and suffered rationed care as a result. John is in his late twenties, single and self-employed. He is forced to purchase expensive health insurance that he doesn’t need or want. John is obviously in a different situation than Neil, but both have felt the negative impact the ACA has had on their lives.
Robert: The elimination of the ACA would immediately remove the federal government’s day-to-day insertion and micromanagement of healthcare. You have to remember that under the Constitution’s Supremacy Clause, federal law dominates over state law. As long as the ACA is in effect, states are hamstrung in their ability to adopt policies that will give them more opportunity and flexibility to respond to citizens’ needs. The ACA also prevents states from implementing proposals that would decrease costs and increase access to care. Removing the ACA would allow states to ensure there’s a safety net for the vulnerable who need it, but also provide a state-by-state regulatory marketplace that could deliver better healthcare results at lower costs.
Robert: State think tanks should get ready to explain the lessons we’ve learned about why the ACA failed. State thinks tanks should also get ready to be leaders in their states to help resolve the problems with our broken healthcare system. We spend more money than any country in the world on healthcare and seem to get much less in return for those dollars. There are reforms we can move forward that protect and restore the relationship between the healthcare recipient and the healthcare provider. State think tanks need to be the champion of those reforms, whether we’re talking about the push for price transparency or the push for direct primary care. The states need to be the engine of those reforms, and SPN can activate the state think tanks to help the states be just that.