Pratik Shah Quoted by Media in Advance of Supreme Court’s ACA Arguments
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Pratik Shah, co-head of Akin Gump’s Supreme Court and appellate practice, has been quoted by several media outlets regarding the Supreme Court oral argument this week in a case seeking to overturn the Affordable Care Act (ACA).
Shah spoke with the National Law Journal’s “Supreme Court Brief” for a Q&A column on some of the key issues in the case. They include:
- Standing: The Solicitor General, Shah said, defends Article III jurisdiction on only one ground, “that the individual plaintiffs are injured not by the (unenforceable) individual mandate itself, but rather by other lawful provisions that plaintiffs claim are inseverable from the mandate (the only provision they actually allege to be unlawful). That novel standing-by-inseverability theory could open a can of worms.”
- The penalty-free mandate: “Congress has the power to zero out a tax (as “necessary and proper” to its taxing power), and a free choice to buy insurance or not doesn’t really regulate anyone—let alone in an unconstitutional manner.”
- And severability: “The 2017 Congress (and everyone else) believed [that] other ACA provisions could function perfectly well without the mandate. That has proven to be true. So severability should be an easy lift here.”
The Forbes article “As Supreme Court Weighs Obamacare, Health Insurers See Law’s Survival” notes that the challenge before the Court, California v. Texas, hangs on a single part of the ACA known as the individual mandate—which, as originally enacted, gave Americans a choice between obtaining a certain level of health insurance coverage or paying a tax penalty. In 2017, Congress reduced the tax penalty to zero.
America’s Health Insurance Plans (AHIP), a trade group representing health insurers, says, according to the article, that regardless whether a “zeroed-out individual mandate is deemed unconstitutional,” the rest of the ACA should stand and therefore coverage would be preserved for millions of Americans.
Shah, who filed a brief on behalf of AHIP, said the intent of Congress in passing a 2017 law zeroing out the mandate’s tax penalty is clear and was not intended to invalidate the ACA. He and others at Akin Gump went on to write in their brief that arguments on “inseverability of the mandate” from the ACA are based on decade-old presumptions and not actual experience.
“Over the course of a decade, the ACA has fundamentally reshaped the nation’s health care system,” the brief says. “Congress in 2017 chose not to disturb that paradigm shift—including the promise of affordable coverage for those with preexisting conditions—when defanging the individual mandate without repealing any other part of the ACA.”
Click here to read the brief in full.
POLITICO, in its article “Obamacare faces Supreme Court remade by Trump,” reports that health insurers who are now largely profiting from the ACA say the elimination of the mandate penalty has not hurt the law’s insurance marketplaces or undermined its coverage protections. And the Trump administration, the article says, while urging the Court to overturn the law, also brags about how well its insurance marketplaces are performing.
To that point, Shah said, “The individual markets have remained stable, and in fact they’ve seen more plans participating in certain markets, premiums going down.”
Looking at the eventual fate of the ACA, Shah told HealthcareFinance News, for its article “Supreme Court to hear oral arguments this morning to determine validity of Affordable Care Act,” it is hard for him “to believe that either Congress or the Supreme Court would have an interest in setting aside the ACA, to take away health insurance during a pandemic.”
Shah also previewed the arguments in the case as part of a SCOTUSblog symposium, “Severability poses a high-stakes question with (what should be) an easy answer.” Click here for more.
