Backdoor Repeal: How Health Care Opponents are Rewriting History to Challenge the Affordable Care Act in Court

Joel Dodge Staff Attorney for Judicial Strategy at the Center for Reproductive Rights

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Just days after the November 2020 election, the U.S. Supreme Court will hear the latest lawsuit attempting to strike down the Affordable Care Act (ACA). The case, California v. Texas, is the third existential threat to the ACA to reach the Supreme Court in the last eight years and hinges on a single question: When Congress passed the 2017 Tax Cuts and Jobs Act that zeroed out the ACA’s tax penalty for people without health insurance, did it intend for the entire ACA to fall with it? As Joel Dodge explains in a new ACS Issue Brief, fortunately “the answer to what Congress had in mind for the ACA in 2017 is readily discernible from what Congress actually did in 2017.” Walking through the legislative history and basic severability principles, Dodge concludes that there is no room for doubt: Congress opted to eliminate the mandate penalty while retaining the rest of the ACA.

 

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