On December 18, 2019, the U.S. Court of Appeals for the Fifth Circuit issued its opinion in the Texas v. Azar case. 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 PPACA’s individual shared responsibility penalty rendered the individual shared responsibility provision, 26 U.S.C. § 5000A, unconstitutional. The 5th Circuit vacated the lower court’s decision that the remainder of the PPACA was inseverable from the unconstitutional individual shared responsibility provision. The 5th Circuit remanded the case to the lower court for “more searching inquiry” into the severability issue (p. 59). The 5th 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. 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.