For years, people have been speculating about the future of the Affordable Care Act:

• Many believed that President Trump’s victory in 2016 meant a sure end to the health care law. 
• When that didn’t happen and the administration started chipping away at some of the major provisions, some guessed that the law would end up collapsing. It did not.
• And after the individual penalty on the individual mandate was reduced to zero, opponents of the law hoped that the Supreme Court would find it unconstitutional.

While we still don’t know for sure what will happen, we can finally narrow down the options a bit. With the presidential election behind us and the Supreme Court now considering whether to save or kill the ACA, we can make a more educated guess about the future of Obamacare. By eliminating some of the possibilities, we can narrow down the list of what might happen to just a few likely scenarios.

The Presidential Election

At long last, the presidential election is over and Joe Biden is officially the 46th President of the United States. That, of course, means that Republican efforts to repeal and replace the ACA will be unsuccessful for the next four years. Even if they had the votes to repeal the law, which they don’t, President Biden would never sign the bill.

It also means that, from a regulatory standpoint, we could see some changes to the existing health care law. President Trump issued several executive orders during his time in office, including orders to expand short-term plans and Health Reimbursement Arrangements. As President, Biden will have the power to undo those orders and ask the regulators to once again rewrite the rules. Other administrative decisions that were made during President Trump’s time in office, like halting reimbursements to carriers for cost-sharing subsidies, cutting the Healthcare.gov marketing budget, and shortening the open enrollment timeframe, could also be undone.

With that said, Larry Levitt, Executive Vice President for Health Policy at the Kaiser Family Foundation, points out in a November 25 tweet that, although the “incoming Biden Administration can and no doubt will reverse many Trump regulations…undoing regulations takes time to get though procedural hurdles (which are there to prevent capricious executive actions).” In other words, Biden does have the power to undo much of what Trump did, but it won’t be instantaneous. 

Finally, to whatever extent he can, Biden will work to expand the Affordable Care Act, which was signed into law while he was Vice President under President Obama. That won’t be easy, though, as most if not all changes would require unanimous support among Democrats or at least some Republican votes in the Senate. But with a narrow majority in the Senate, it is possible for Democrats to get some popular bills through without any Republican buy-in.

Another way to make changes to the Affordable Care Act is to include those changes as part of broader legislation that does have bipartisan support, like COVID relief bills. It appears that President Biden will do just that with his initial COVID relief proposal. As Larry Levitt reports in a January 14 tweet, Biden’s relief package includes “An increase in ACA subsidies and extension to the middle class by capping premiums at 8.5% of income,” even for people who make more than 400% of the federal poverty level.

Control of Congress

Legislative changes require one of two things: control or compromise. By control, we mean that one party would need to control both chambers of Congress, and with the two Democratic candidates winning the runoff elections in Georgia, Democrats do have control, at least for the next two years. 

In the Senate, there are now 48 Democrats and two Independents who caucus with the Democrats. That means that any bills that make it out of the House will actually have a chance of making it to the floor for a vote in the Senate and that some of these bills will actually become law – again, with unanimous support among Democrats and a tie-breaking vote from Vice President Harris.

This is important because, without control, Democrats would have been forced to compromise with Republicans for any improvements they’d like to make to the ACA, and with deep divisions between the two parties, this sort of compromise seems unlikely.

While Democrats do now have control of the Senate, they’ll still have a difficult time making significant changes to the existing health care law for three reasons:

1. Even within the same party, lawmakers don’t always agree. With even one dissenting vote, Democrats would be unable to make any proposed changes unless they were able to pick up some Republican votes. The biggest issue that Republicans worry about—Medicare for All—does not have universal support among Democratic lawmakers, and even President Biden has confirmed he does not support this proposal (though he does support an early buy-in to Medicare or a public option), so at this point Medicare for All seems to be a no-go. 
2. While changes that impact the federal budget can be made with a simple majority vote in the Senate, other changes would need a filibuster-proof 60 votes to pass. And the Democrats won’t have a super-majority.
3. Of course, there is always the possibility that Democrats, if they did control the Senate, could eliminate the filibuster, but the New York Times reports that Democratic Senator Joe Manchin says that will not happen on his watch. 

The Balance of the Power on the Court

While the balance of power in the Senate was decided in the Georgia runoff elections, the Supreme Court became even more conservative just one week before the November elections. President Trump nominated and the Senate confirmed Amy Coney Barrett to replace the late Ruth Bader Ginsburg on the Supreme Court, giving conservatives a 6-3 majority. This could, of course, impact the ACA case that is before the Court right now as well as countless other cases for years to come.

The Supreme Court Case

With a Democrat in the White House and in control of both chambers of Congress, the biggest threat to the Affordable Care Act is the case heard by the Supreme Court on November 10. This case challenges the constitutionality of the Affordable Care Act following the elimination of the individual mandate penalty. The argument is that, without the penalty, the mandate is no longer a tax and is therefore unconstitutional and that the mandate is inseverable from the rest of the law.

While legal scholars have debated the merits of the case since it was filed in early 2018, over time most have agreed that the Court, particularly with a clear conservative majority, could use the case as an opportunity to kill the Affordable Care Act. From the oral arguments, though, it does not appear that the plaintiffs will be successful.

As NPR reports, “even with three Trump appointees, the Affordable Care Act looked as though it may well survive.” 

During the proceedings, Chief Justice John Roberts signaled which way he was leaning by saying, “I think it's hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act.” He went on to say that Congress may have wanted the Court to make the decision to repeal the law, “But that's not our job.”

Justice Brett Kavanaugh seemed to agree, saying that “It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place, the provisions regarding preexisting conditions and the rest.”

Even Justice Clarence Thomas, who rarely speaks during oral arguments, chimed in to question whether anyone was actually harmed by an unenforceable individual mandate. With no harm, there is no standing.

While legal scholars frequently warn against trying to predict how the Court will rule based on what the justices say during the hearing, supporters of the law did breathe a sigh of relief after hearing the comments from the conservative justices. We should have a ruling sometime in June.

In Summary

If we had to guess right now, it looks like the Affordable Care Act will remain the law of the land. And, whether you support or oppose the ACA, perhaps that’s not a bad thing in the middle of a pandemic. People are scared, and the last thing they need is to worry about losing their current health coverage.

There are several reasons the ACA is likely to survive:

• It appears the Supreme Court will once again refuse to strike down the law.
• President Biden is a supporter of the existing law and would like to improve and expand it.
• Republicans do not have control of the House or the Senate, so they will be unable, at least for the next two years, to pass a law to repeal the ACA. Even then, Biden would have the power to veto it.

That said, we are unlikely to see major changes to the ACA since Democrats will not have the necessary super-majority in the Senate to make any big improvements. They will control the executive branch, though, and that means that Biden could ask the Departments to re-write some of the regulations that the Trump administration put in place. Other regulatory changes could be made through executive action, though it’s unclear at this point what those might be.

One final possibility we need to consider is that the Supreme Court will strike down the law (again, this seems unlikely) with no ability for either party to fully replace the Affordable Care Act. If that were to happen, then we’d fall back to the old system where the various states make decisions about covered benefits and rating rules, subject to other federal laws like HIPAA. 

Only time will tell what will ultimately happen, but at least we’re better able to predict the future now than we were just a couple months ago. Stay tuned—as we learn more, we’ll be sure to let you know.