In March 2020, Citizens Against Government Waste (CAGW) discussed the announcement that the Supreme Court of the United States (SCOTUS) had agreed it would take up the case Texas v. United States and review the constitutionality of the Patient Protection and Affordable Care Act (ACA), more commonly referred to as Obamacare.  Speculation was rampant on when SCOTUS would hear the argument, before or after the election.  Now we know.  The argument is scheduled for November 10, just seven days following the election for president of the United States and it will be the only case they hear that day.

Healthcare, particularly fighting COVID-19, was and will remain a top issue for the presidential campaign and the fate of Obamacare will be a major part of the discussion.  But the SCOTUS decision on whether Obamacare is constitutional will not come until the spring or summer of 2021.

The case to overturn ACA, now called Texas v. California, began soon after the Tax Cuts and Jobs Act was passed in 2017, which reduced the tax penalty for not purchasing health insurance to zero dollars as of January 1, 2019.

You will recall the 2012 SCOTUS opinion on NFIB v. Sebelius, which first challenged ACA’s constitutionality, was written by Chief Justice John Roberts.  The constitutionalty of Obamacare was upheld because Roberts said the individual mandate penalty for not buying health insurance was a tax, which people could choose to pay or buy insurance instead.

That ruling is what inspired Republican attorney generals and governors in twenty states, led by the Texas attorney general, to sue the U.S. government declaring ACA’s individual mandate was no longer constitutional because the penalty produces no revenue for the government.  The case has been through some twists and turns and has gone through the federal district court in the Northern District of Texas, the 5th Circuit Court, and is now before the Supreme Court.  The Kaiser Family Foundation gives an overview of the proceedings.

The next few months will be filled with hysteria and false declarations about the fate of Obamacare but the important thing to understand is there will be no changes to ACA during this process.  In the meantime, Democrats and Republicans will have to make their case to the American people on what to do with the controversial healthcare law.  Can Obamacare’s continuing sky-high premiums be fixed with an infusion of more tax dollars along with a heavy dose of Medicare for All, Sen. Bernie Sander’s (I-Vt.) government-controlled healthcare plan? Or would returning purchasing and decision-making power back to the people be a better way?  Republicans have argued they wish to empower individuals to get the kind of healthcare plan they want; not what Washington politicians and bureaucrats decide.  Their ideas are embodied in a policy brief offered by the House Republican Study Committee, “A Framework for Personalized, Affordable Care” and the “The Healthcare Choices Proposal,” which Senate Republicans are transforming into legislative language.  Both proposals would protect Americans with pre-existing conditions.  President Trump has also said he would protect those with pre-existing conditions if SCOTUS should declare Obamacare unconstitutional next year.

It will be up to Congress to fix the numerous flaws with Obamacare before and after SCOTUS makes their decision and what that looks like will be up to the voters.