Law professor John Aloysius Cogan Jr. is a health insurance expert and Roger S. Baldwin Scholar at the UConn School of Law, who focuses his research and teaching on health care organizations and finance, health law and policy, federal health programs, health care fraud and abuse, and health insurance law. He has written scholarly articles on a wide range of health insurance topics, including the Affordable Care Act and the Health Insurance Portability and Accountability Act, otherwise known as HIPAA.
Today the Supreme Court of the United States will hear arguments in California v. Texas. The plaintiffs in the case are asking the Court to invalidate the Affordable Care Act (ACA). In a new article to be published in the Boston College Law Review later this month, Cogan argues that the Affordable Care Act should remain intact because two statutes passed by Congress earlier this year, the Families First Coronavirus Relief Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security (CARES) Act, demonstrate that Congress wants to keep the ACA intact. The two statutes use the ACA to provide coronavirus-related health care relief to millions of Americans. He discussed his article with UConn Today.
In California v. Texas, the Supreme Court will focus on whether Congress intends the Affordable Care Act to continue. Your paper in the Boston College Law Review says this issue was settled by Congress earlier this year. What are the grounds for this filing and how did you stake out your position after evaluating it?
To understand this lawsuit you have to go back to 2012 and the first Affordable Care Act case that went before the Supreme Court, which was called NIFB v. Sebelius. In that case, the plaintiffs argued that the individual mandate — the requirement that you had to buy health insurance — was unconstitutional. The Supreme Court found the mandate constitutional under the Congress’s constitutional taxing power because the mandate included a penalty. Americans who didn’t buy the insurance had to pay a penalty. Since the penalty would generate revenue for the government, the Court said it was like a tax. Therefore, it was authorized under the Constitution’s taxing clause.
Fast-forward five years to when Congress got rid of the penalty for the mandate. In 2017 Congress passed a law that reduced the mandate penalty to zero dollars, but left the mandate in place. The people who oppose the Affordable Care Act remembered the 2012 case and immediately filed suit, arguing that the mandate was unconstitutional because its penalty was no longer a tax. But they did not stop there. They then argued that the entire ACA should be struck down. They argued that the mandate could not be severed from from the rest of the ACA because Congress believes the mandate is so essential to the entire ACA. There’s one provision in the ACA that uses the term “essential” when talking about the mandate and its relationship to the ACA. The district court in Texas agreed. It ruled that the mandate was unconstitutional and then turned around and struck down the entire ACA in late 2018.
Last March, when the coronavirus was erupting, Congress turned around and passed several coronavirus relief statutes, two of which are the FFCRA and the CARES Act. Together, those two statutes provide Americans with near-universal coverage for coronavirus testing and provide cost-free access to coronavirus vaccination for many Americans. In order to provide those benefits, Congress used the ACA. The ACA is the foundation for many of the health benefits provided by those two statutes. This created a conflict. On the one hand we have a federal court saying, no, the ACA is no good, that’s what Congress wanted. On the other hand, in 2020, you’ve got Congress actually using the ACA to respond to the coronavirus. This suggests that Congress wants the ACA to stand.