They Call Me an Architect of Obamacare. I Can't Stand By as Activist Judges Threaten American Lives | Opinion

In 2014, the Affordable Care Act provided affordable health insurance to 20 million Americans. Equally important, it created the first non-discriminatory insurance market in the U.S., ensuring that Americans would no longer be one bad accident or one bad gene away from bankruptcy. A key piece of the law was the individual mandate, which was designed to incite broad participation in insurance markets and keep premiums down in state exchanges.

The law worked quite well. Not only did millions gain insurance, but tens of millions more slept better at night knowing that if they lost their insurance, they wouldn't be "uninsurable" because of prior illness. Premiums in state exchanges were 16 percent below projections in 2014, and they rose on average about 8.6 percent per year over the first three years of the program, well below the 10 percent or more per year before the ACA. Overall health care costs in the U.S. grew at their slowest rate in measured history.

But the mandate was unpopular. And in 2017, the Republican-led Congress effectively removed it by setting the associated tax penalty to zero. This had the expected effect of lowering enrollment in state exchanges and significantly raising premiums due to a less healthy risk pool. Yet the ACA, while weaker, soldiered on, with more than 17 million individuals currently owing their coverage to the law and other provisions, such as non-discrimination, remaining in place.

Now, the ACA itself is at risk. In a highly controversial decision, a district court in Texas ruled in December 2018 that since the individual mandate was no longer valid, the entire ACA had to be repealed. The judge, Reed O'Connor of the Northern District of Texas, is well-known as a conservative opponent of government, and legal experts on both sides of the aisle have pointed out that there is no basis for his decision.

O'Connor argued, based solely on his own logic, that the mandate is not "severable" from the ACA—that without a mandate, the law is no longer valid. This reasoning flies in the face of the facts: The mandate is clearly severable from the general ACA, as demonstrated by the fact that the ACA still functions well after the mandate's effective removal. The judge's argument also directly contradicts congressional intent. Congress had a shot to kill the whole ACA, and it did not—instead simply cutting out the mandate. That is, Congress itself has clearly shown that the mandate is viewed as separable from the larger law.

Nevertheless, this week, an appellate court didn't reject the judge's improper reasoning. The court simply sent it back to him to take another shot at it. The judges of the Court of Appeals for the Fifth Circuit even spiced up their report with a random footnote so politicized, it could be a direct quote from our president: "Some opponents of the ACA assert that the goal was not to lower health insurance costs, but that the entire law was enacted as part of a fraud on the American people."

This is a complete abdication of responsibility in the face of an improper decision. Rather than make the hard call, the appellate judges punted—conveniently, until almost certainly after the 2020 election.

The implications for Americans are dire. Recent research shows that thousands of lives have been saved by the expansion of insurance coverage under the ACA. And U.S. citizens by large margins support the removal of discrimination from insurance markets. Indeed, the parts of the ACA that remain—including making coverage affordable through both the public Medicaid program and tax credits to private insurance—are widely popular.

Obamacare pre-existing conditions
Holding photographs of Americans with pre-existing medical conditions, Democratic members of Congress attend a press conference on the steps of the U.S. Capitol on July 9 in Washington, D.C. Win McNamee/Getty

Moreover, there is no simple alternative to the ACA. Congressional Republicans and the Trump administration have sold us a fiction of "repeal and replace," but about 10 years after the debate over the ACA, there is no replace. The only serious efforts in Congress to address the ACA would have left between 20 million and 32 million people without insurance—and would have reintroduced the ability of insurance companies to discriminate against our sickest neighbors, friends and family members. Meanwhile, efforts on the left to replace the ACA with something much bolder, such as single-payer health care, have been unsuccessful for decades and don't have widespread public support once the costs of these plans are understood.

The irony here is quite rich. Remember, opponents of the ACA often warned that it would "take away your insurance." (In fact, most individuals who "lost" insurance under the ACA were those whose coverage, largely unbeknownst to them, left them exposed to unaffordable medical bills.) Now, the removal of the ACA would result in many more Americans losing access to real, meaningful insurance.

The decade of fighting over the ACA shows how legislating is supposed to work, for better or worse. When one party had control of the Congress and the White House, it passed a law. When another party took over, it attempted to repeal that law. Finding itself unable to, it removed a part of the law it didn't like. That should have been the end of the story.

But now a rogue judge in Texas is coming for the health insurance coverage that protects millions of Americans—and the protections against insurance company discrimination that benefit all of us. It's time for the rest of the court system to do its job and end this frivolous attack on a law that still works to benefit millions of Americans.

Jonathan Gruber is the Ford Professor of Economics at the Massachusetts Institute of Technology, where he has taught since 1992. He is also the Director of the Health Care program at the National Bureau of Economic Research and former President of the American Society of Health Economists. He is often referred to as a key architect of the Affordable Care Act. His book Jump-Starting America, with co-author Simon Johnson, is out now.

The views expressed in this article are the writer's own.