Last week, a federal judge in Texas struck down the Affordable Care Act (ACA) in a lawsuit filed by a group of Republican governors and state attorneys general. In the ruling, Judge Reed O’Connor of the Federal District Court in Fort Worth said that the mandate requiring people to buy health insurance is unconstitutional and so the rest of the law cannot stand without it. In the Q&A that follows, Professor Michael McConnell discusses the ruling and what may be next for the ACA.

In a recent op-ed, you called the Texas lawsuit “borderline frivolous.” Can you explain why?

The Supreme Court has already held that the mandate for individuals to purchase qualifying insurance under the ACA is constitutional as an exercise of the taxing power. That mandate was effectively repealed (or rendered toothless) in 2017 when Congress reduced the tax penalty to zero as part of the tax reform bill.  No one doubts that the remaining portions of the Act, such as “mandatory issue” (the protection for previously-existing conditions) are constitutional under the Commerce Clause, but in the 2012 litigation the Obama administration took the position that these remaining provisions would have to be struck down if the mandate were struck down—not because they are independently unconstitutional, but because Congress would not have enacted them without an individual mandate. This is called the severability doctrine: If the courts hold one portion of a statute unconstitutional, they have to decide whether Congress would have wanted the remainder of the statute to be enforced on its own. If so, they “sever” the remaining portions of the statute from the unconstitutional parts, and those portions remain in force.

Contrary to the Texas district court, Congress’s repeal of the tax penalty did not make any part of the ACA unconstitutional, though it made the mandate to purchase insurance unenforceable. That poses grave economic difficulties for health insurance companies, who are required to cover already-sick people but have no way to get healthy people to join the risk pool, but that is an economic policy issue, not one of constitutionality. There is no severability doctrine applicable to congressional decisions to repeal or amend a statute. When Congress votes to amend a statute, as it did in 2017, it is up to Congress not the courts to decide whether the unamended portions of the statute should remain in place.

Yet Judge O’Connor said the mandate requiring people to buy health insurance is unconstitutional.

In NFIB v. Sebelius (2012), the Supreme Court held that the mandate requiring people to buy ACA-compliant health insurance is constitutional under the taxing power. (In effect, the Court said that the ACA can impose a tax on those who fail to purchase the insurance.) Nothing has changed that holding, but Congress has effectively repealed the tax penalty, which means the mandate is unenforceable. Not unconstitutional—just without any penalty for violation.

So, because the insurance purchase mandate, a key part of the ACA, was repealed by Congress last year, the legal argument behind the judge’s ruling falls apart?

As noted above, in 2017, Congress voted to eliminate the purchase mandate but not to repeal the mandatory issue requirement. (Republicans argued for complete repeal of the ACA and replacement with something more workable, but they did not have the votes for that.)  That became Congress’s choice. The Court has no authority to disturb it.

Do you expect this case to reach the Supreme Court?

My best guess is that the decision will be reversed by the Fifth Circuit, and that will be the end of it.

Have any aspects of the ACA been ruled unconstitutional? 

The Supreme Court held parts of the ACA unconstitutional in 2012, namely the requirement that states expand eligibility for Medicaid. Nothing has changed since then that affects the law’s constitutionality.

Does this decision fit into any larger pattern?

In the last few years, there have been an extraordinary number of district court decisions holding government action unconstitutional on dubious grounds. Fortunately, Judge O’Connor did not issue a nationwide injunction immediately enforcing his ruling, as other courts have done.

Michael W. McConnell is the Richard and Frances Mallery professor of law and director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution. He formerly served as a judge on the U.S. Court of Appeals for the 10th Circuit.