The ACA wars through a pandemic lens: Nicholas Bagley looks back

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I spoke to Nicholas Bagley, health law professor at the University of Michigan, about measures to limit Americans' out-of-pocket exposure for coronavirus treatment -- assuming that in the U.S., simply covering all OOP for everyone treated for the disease at government-set payment rates to providers is not going to happen.

My thought was that Bagley could speak to avoiding legal pitfalls in any such measures. But his sense is that in the current crisis, legal concerns pertain mainly to potential administrative actions  (for example,  Can the CDC Pay for Everyone's Coronavirus Testing?).

Given normal U.S. legislative sclerosis, seeking regulatory authority to do what needs to be done is often fertile ground for legal analysis. Right now, though, the cards may line up for decisive legislative action, as they do in this country when (and only when) Republican political survival depends on it. And while there are multiple constraints to regulatory action, "there are fairly few constraints on Congress's legislative power," Bagley said. "Congress doesn't quite have carte blanche, but close to it. The question is not what does the Constitution allow Congress to do. We should be asking, 'what do we think ought to happen?' And then we should do it."

No mandate penalty, no problem? The jury's still out

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The Kaiser Family Foundation is peerless as a source of data and analysis of the ACA marketplace, and indeed of all U.S. healthcare markets. So it's probably foolish of me to question a simple, unequivocal and important conclusion by KFF president and CEO Drew Altman. Still...

Altman, who has a regular column conforming to Axios' radically short format, begins his latest with this declarative:

The Affordable Care Act’s insurance market has not been materially affected by the elimination of the individual mandate penalty.

Evidence: premiums are down in 2020, marketplace insurers are profitable, the risk pool has not apparently worsened, enrollment is more or less stable, and the Medicaid expansion appears to have been "largely unaffected."

That's a lot of evidence in short space. The marketplace, and the Medicaid expansion are clearly functioning without the mandate. But still, I think it's too soon to declare the effect of zeroing out the mandate negligible.  Caveats:

What state laws ratifying ACA marketplace rules can and can't accomplish

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On May 31, New Jersey legislators introduced, with Governor Murphy's support, a raft of bills* that  codify in state law the ACA's coverage rules in the individual and small group health insurance markets, including protections for people with pre-existing conditions

Separate bills maintain a ban on medical underwriting or exclusion of pre-existing conditions (S626), mandate coverage of the ACA's Essential Health Benefits (S562) and a set of preventive services (S3803), and limit age rating -- the degree to which the oldest enrollees can be charged more than the youngest adult enrollees -- to the ACA's 3-to-1 ratio (S3810).**

Many other states with Democratic governors and legislatures have passed or have in progress similar laws that duplicate the ACA's federal standards. Such laws are redundant by definition; they are designed as protection against future further Republican action to undermine the ACA.

I can imagine these laws serving a useful function under two circumstances:

BlueWaveNJ on the cost of ACA nullification

Here's what BlueWaveNJ thinks of Donald Trump's now-total support for the ridiculous suit seeking to nullify the entire ACA:

The Trump administration's recent shift to full support of a lawsuit filed by 20 Republican attorneys general and governors seeking to have the entire Affordable Care Act declared unconstitutional is a legal absurdity and a wantonly cruel and reckless policy decision. The plaintiffs argue, and the Trump administration now agrees, that the entire ACA became unconstitutional when Congress reduced the individual mandate penalty to zero in late 2017, because the Supreme Court in 2012 held that the mandate was Constitutional only as an exercise of Congress's taxing power. That is rank sophistry rejected by attorneys and legal scholars across the political spectrum -- suggesting in effect that the Republican Congress repealed the ACA by accident when it zeroed out the mandate penalty as part of the tax package passed in December 2017 after failing in multiple attempts to repeal the law's core programs earlier that year.

There's more...  

Should Democrats seek to kill the anti-ACA lawsuit with legislation? Bagley v. Jost

Progressive legal opinion is divided with respect to how Democrats should fight the latest ridiculous suit seeking to have the ACA declared unconstitutional, Texas v. U.S., The suit was upheld in December by an extremist U.S. District Court judge in Texas, Reed O'Connor, who stayed the ruling pending appeal.

The question: should the Democratic House simply join the defense against the suit in court, which it has opted to do, or also pass legislation that would render the suit moot if it became law? Taking opposite sides are two progressive stalwarts of the ACA's legal wars.

The invisible primary for judicial repeal of the ACA

Slapped on a Friday evening with a hyperpartisan judge's palpably ridiculous decision purporting to strike down the entire ACA, I suspect that many progressive minds restarted a two-stroke motor that's been running since Texas v. U.S. first stained the horizon.

Stroke 1: this suit is too ridiculous even for Republican judges.  It claims in effect that Republicans in Congress repealed the entire ACA in a fit of absent-mindedness when they zeroed out the mandate penalty last December.

Stroke 2: we had the same reaction to the two prior anti-ACA suits to reach the Supreme Court, one of which failed by a 5-4 and the other by a 6-3 count. Will the absurd again become Republican orthodoxy?

Will this legal nightmare recur? Jack Balkin offers crucial perspective: