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Can the Affordable Care Act be Repealed?

People opposed to the Affordable Care Act have been heartened by recent events.  Their hopes for a repeal of the health care reform bill were raised by the ruling in Florida by Federal District Judge Vinson.  The judge declared the entire law unconstitutional by virtue of its mandate that everyone must purchase health insurance.  In addition, legislators recently elected to the House of Representatives  have begun their promised efforts to dismantle if not repeal the bill altogether.  Will these actions  be successful?

Looking first at the judicial angle, all agree, ultimately, it’s the Supreme Court that will decide the bill’s fate.  However, the process of bringing this issue before the Supreme Court is only beginning.  The high court accepts cases only after they’ve been thoroughly vetted in the lower federal district and appeals courts first.  The Vinson ruling was the 4th decision by a federal district court.  Previously, 1 federal district ruling agreed that the Affordable Care Act was unconstitutional while 2 others did not. The next step in the process will occur in May when the U.S. Court of Appeals, 4th Circuit, hears the first serious case challenging the law.  Depending on the actions of other appeals courts,  judicial experts believe the Supreme Court might be ready to get involved as soon as late 2011/early 2012.

All challenges, so far, are based on the constitutionality of requiring all people to buy health insurance.  That mandate was included in the bill to ensure that the cost of covering  people with pre-existing conditions would be shared across a large number of healthy people.  Without the mandate, premium rates would sky-rocket forcing healthy people to drop their coverage and insurance companies to go out of business.  This is exactly what is happening today in New York where insurance companies must accept all people at the same relative cost, regardless of their health condition.

What then, are the chances that the Supreme Court will eventually rule against the Affordable Care Act based on the insurance mandate?  Six months ago, legal experts felt this was unlikely based, in part, on the fact that the Court rarely ruled against laws passed by Congress.  Recently, however, the legal community sees the tide turning in the opposite direction.  The Florida ruling was a significant factor in this change.  The 78 page ruling, rendered in response to a suit by 26 states, is considered scholarly and thorough in its discussion of constitutional principles.

Concerned that the high court might agree with Judge Vinson, officials have urged the administration to preserve the bill by dropping the mandate provision altogether.  In its place, to incentivize people to buy insurance, insurance companies would be allowed to penalize people who delay or drop their health care coverage.  This is not new. Medicare is handled this way now.  People who wait to apply for or stop coverage face a penalty added to the regular premium when coverage is resumed.  The longer they delay coverage, the larger the penalty.  Unlike the mandate, however, people who elect not to buy insurance aren’t criminals.  Changing the law might make it constitutional; but a divided Congress makes that move unlikely.

Meanwhile, a strategy to disable the Affordable Care Act is preceding in the House of Representatives. Although hobbled by a Senate and President committed to preserving the bill, House leaders intend to:

·    Dismantle it by pulling out less popular parts of the law that even the opposite party can support.  This has already started with a bill removing the provision requiring businesses to file onerous paperwork for relatively small transactions..
·    De-fund provisions necessary for the bill’s implementation.  This also has begun.
·    Discredit the bill by holding hearings and calling on witnesses to testify about the deleterious effects of the bill on the economy, health care, and general welfare of the country
·    Pass alternatives to the Accountable Care Act by crafting bills that would solve our health care problems without undue government control or involvement.

So, right now, anything can happen.    It’s essential, in the meantime, that Americans learn as much as possible about what their future with the Affordable Care Act might look like and how that future might be made brighter.   To this end, future posts will attempt to fill in the blanks.  After all, the 2012 election is only 21 months away!

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