‘Stranger Things,’ the ACA and a federal appeals court

Anyone binge watching “Stranger Things,” will be struck by the similarities with the real-world drama playing out before the federal appeals court in New Orleans. The question before the three-judge panel is whether the Affordable Care Act should be struck down in its entirety.

In “Stranger Things,” the deadly threat comes from an upside-down parallel universe in which things aren’t what they seem, the rules of logic don’t apply, and nothing makes sense.  The case being brought by a group of Republican governors and attorneys general seems to be coming from a similar place.

A federal judge in Texas agreed with their position and, depending on what happens next in the New Orleans court, there’s a good chance the case will go before the Supreme Court.

If Congress had intended to repeal the Affordable Care Act when it eliminated the individual mandate penalty, it could have done so – but didn’t.

First, let’s remember what’s at stake.  It’s not just the health care coverage that 20 million Americans count on through health insurance made available through the Affordable Care Act.

Overturning the health care law in its entirety would remove all of the patient protections and guard rails that we now take for granted. Protections for people with pre-existing conditions would be eliminated as would the requirement that insurers cover young adults under their parents’ plans up to age 26.  Lifetime and annual limits on coverage would be back along with no caps on out-of-pocket costs.

The legal rationale for overturning the Affordable Care Act and creating a health care catastrophe comes straight out of the Stranger Things’ upside-down world.  Here’s the GOP argument:

1. When the Supreme Court upheld the constitutionality of the Affordable Care Act seven years ago, it cited the Act’s tax penalty that most Americans pay for not buying health insurance. It was deemed a tax, and only Congress can impose taxes.

2. In 2017 Congress eliminated the individual mandate penalty but retained the mandate. The individual mandate is unconstitutional because it is no longer a tax.

3. If the individual mandate is unconstitutional, the entire act must be tossed because the pieces are inextricably tied together.

Only judges living in a “Stranger Things” universe would jeopardize the health care of millions with the dim hope that Congress might come to the rescue.

The Republican Attorneys General suggest that the Affordable Care Act cannot be severed – if one brick is removed, the entire structure collapses. One of the three judges hearing the case noted that some members of Congress might have seen zeroing out the individual mandate penalty as a “silver bullet” to bring down the entire law; and from the rubble, Congress would surely “fix” the problem.

The issue boils down to a question of severability:  The individual mandate was an important element of the Affordable Care Act that helped encourage healthy individuals to buy coverage.  But when Congress eliminated the penalty, most people kept on buying health insurance and the marketplace remains strong.  Some states, like California, are enacting their own mandates to fill in the gap left by Congress.

Yet if Congress had intended to repeal the Affordable Care Act when it eliminated the individual mandate penalty, it could have done so – but didn’t.

In the real world where we get our health care, President Trump and his Republican allies in Congress have tried for the past three years to repeal the Affordable Care Act and replace it with something they could support. Fortunately, they’ve been unable to do so.

Only judges living in a “Stranger Things” universe would jeopardize the health care of millions with the dim hope that Congress might come to the rescue with a policy solution that would protect the health care of millions of Americans.

No spoiler-alert here, but most TV shows have a happy ending. Let’s hope it’s the same with this case for millions of Americans dependent on the Affordable Care Act.
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Editor’s Note: David Panush is President of California Health Policy Strategies LLC, a Sacramento-based consulting group.  He can be reached at d.panush@calhps.com