The answer largely depends on what the U.S. Court of Appeals for the Fifth Circuit decides in the coming months. Earlier this month, on July 9, this court in New Orleans heard arguments on a case that could upend the 2010 Affordable Care Act (ACA). This threat was filed by a group of 20 red states, including Indiana, in 2018, which the Trump administration has joined.
Their argument is that Congress’ decision to scrap the individual mandate penalty in its 2017 tax cut rendered the law unconstitutional because the Supreme Court previously upheld the mandate as a valid exercise of its taxing power. The three-panel U.S. Fifth Circuit Court is made up of two Republicans and one Democrat.
Politico analysis on the possible decision scenarios: “They could back the lower court ruling invalidating all of Obamacare or overturn it entirely. The judges may also determine that the elimination of the individual mandate penalty only renders certain parts of the ACA unconstitutional, such as its protections for individuals with preexisting medical conditions. That was the Trump administration’s original stance on the lawsuit before recently embracing the lower court ruling against the entire ACA.”
On the flip side, “The judges could toss the entire lawsuit if they determined the red states who brought the case haven’t suffered any harm from the removal of the individual mandate penalty. Attorneys for those states argued that even without a tax penalty, the mandate causes harm by forcing them to spend money on government health care coverage for more people.”
One thing seems certain. If the appellate court rules against the law, that would pretty much guarantee the ACA’s survival once again will come down to the Supreme Court.