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Is the Affordable Care Act Constitutional? A Legal Scholar Says 'It Is an Easy Question'

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Lawrence O. Gostin, JD, is the university professor and faculty director at the O’Neill Institute for National and Global Health Law at Georgetown University Law Center. He is also the director of the World Health Organization Collaborating Center on Public Health Law and Human Rights. His most recent book is titled Global Health Law (Harvard University Press).

Doximity had the pleasure of chatting with professor Gostin about the Affordable Care Act and the recent court case, Texas v. United States (more coverage of the case is available here), contesting its constitutionality.

Doximity: Critics of the Affordable Care Act (ACA) have argued that it is unconstitutional to force citizens to buy a product they either cannot afford or do not wish to purchase. Is the individual mandate unconstitutional? And more specifically, if not, what provision(s) of the Constitution did Congress rely upon to pass it?

Lawrence Gostin: The individual mandate is entirely constitutional. In fact, it is an easy constitutional question in my view. The mandate is a valid exercise of Congress's power to regulate interstate commerce. The individual insurance market is a national market. Insurance finance dollars, health care dollars, pharmaceuticals, and electronic records all cross state lines. Congress clearly can set conditions on that commerce. The Supreme Court has, since the early 20th century, interpreted the Commerce Power very broadly.

Dox: When it was passed, how did the ACA change the health care landscape? What were the practical effects for patients/providers?

LG: The ACA had profound impacts. It required insurers to cover everyone with a preexisting condition and without charging higher premiums; it vastly expanded the number of people covered by insurance (for example, through subsidies and medicaid expansion); and it created incentives for health care providers to reduce costs.

Dox: Can you briefly describe the provisions of the ACA that were at issue in Texas v. United States?

LG: The main argument [put forth by Texas] was that the entirety of the ACA should be struck down because Congress had effectively repealed the individual mandate in the Tax Act. That makes no sense at all. The rest of the ACA can still function without the individual mandate. And when passing the Tax Act, Congress clearly did not intend to repeal the whole ACA, only the mandate. I cover Texas v. United States in greater detail in my JAMA Forum Article.

Dox: In the Texas case, Judge O’Connor struck down the ACA in its entirety, reasoning that the individual mandate was inseparable from the Act as a whole. In your opinion, what are the pitfalls and/or the sound points of Judge O’Connor’s legal reasoning? Do you think Judge O’Connor’s decision is consistent with existing case law?

LG: Judge O’Connor’s opinion got no support among constitutional scholars. The legal issue is whether Congress intended to repeal the whole ACA. The answer is clearly no. Congress had ample opportunity to repeal the ACA but could not pass it.

Dox: How does the decision in Texas v. United States impact the health care landscape today? In terms of the legal timeline, what can we expect to happen next?

LG: I think the case will have little impact. It is being appealed and I can't imagine higher courts, including the Supreme Court, upholding Judge O'Connor's ruling. If it were upheld, it would completely upend the health insurance market and deprive millions of coverage.

Dox: What are your predictions for the future of the ACA writ large?

LG: Given that the House is currently controlled by Democrats, I don’t see any major changes coming until after the 2020 elections. After 2020, the nation could be in an engaged in even bolder conversation, such as how to genuinely achieve universal health coverage in the United States.

This interview was conducted by Wynter K. Miller, JD.

Read why a doctor says the Affordable Care Act isn't constitutional.

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