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BCLP Counsel Sarah Bhagwandin was quoted in latest edition of Workspan magazine, by WorldatWork, on the U.S. Supreme Court’s consideration of Texas v. California. The Affordable Care Act’s (ACA) individual mandate, which required all Americans to either obtain health insurance or pay a penalty, has been a frequent target of those opposed to the legislation. In 2018, a group of state attorneys general filed a lawsuit claiming that the individual mandate is unconstitutional, and that the act as a whole is invalid without the mandate. The Supreme Court has agreed to review the case, with a decision expected soon. Bhagwandin said if the Supreme Court upholds the 5th Circuit decision that the ACA must produce revenue to be a legitimate use of Congress’ power to tax, and hence the $0 individual mandate renders the act unconstitutional, Congress could enact legislation to save the ACA. The clearest path to doing so would be to increase the penalty from $0 through the budget reconciliation process, she said. Congress also could attempt to sever the mandate from the rest of the ACA or eliminate it altogether, although either option would require a filibuster-proof majority of 60 Senate votes. “In the current political climate,” she said, “it seems highly unlikely to gain bipartisan support for these kinds of actions.”

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