On December 18, 2019, the U.S. Court of Appeals for the Fifth Circuit issued its opinion in the Texas v. Azar case. Healthcare Dive named this Affordable Care Act unconstitutionality case as the “disruptor” of 2019.

The Fifth Circuit agreed with the U.S. District Court for the Northern District of Texas that Congress’s 2017 decision to zero out the ACA’s individual shared responsibility penalty rendered the individual shared responsibility provision (a/k/a individual mandate), 26 U.S.C. § 5000A, unconstitutional. The Fifth Circuit vacated the lower court’s decision that the remainder of the PPACA was inseverable from the unconstitutional individual shared responsibility provision. The Fifth Circuit remanded the case to the lower court for “more searching inquiry” into the severability issue (p. 59).  The Fifth Circuit explained (p. 60).

It may still be that none of the ACA is severable from the individual mandate, even after this inquiry is concluded. It may be that all of the ACA is severable from the individual mandate. It may also be that some of the ACA is severable from the individual mandate, and some is not.46 But it is no small thing for unelected, life-tenured judges to declare duly enacted legislation passed by the elected representatives of the American people unconstitutional. The rule of law demands a careful, precise explanation of whether the provisions of the ACA are affected by the unconstitutionality of the individual mandate as it exists today.

So the case continues.

The ACA marketplace has been running relatively smoothly without the individual mandate. In the FY 2020 spending bill, Congress is amending the law to protect silver loading that helps with the stability. The Trump administration has finalized the individual coverage HRA rules which will add members to the exchange plans. While the Fifth Circuit remanded the severability issue, the FEHBlog can’t imagine that in the end the outcome will be anything other than preservation of the rest of the statute.