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Debate: Is the ACA Preventive Care Mandate Unconstitutional?

By Robert Bloink By William H. Byrnes

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A federal judge in Texas recently declared that the Affordable Care Act (ACA) preventive care mandate is unconstitutional under the Appointments Clause. The preventive care mandate requires health care providers to cover certain preventive services without requiring the patient to contribute to the cost (whether through deductibles, copays or otherwise).

Covered services are those that have an “A” or “B” rating, as determined by an advisory committee called the U.S. Preventive Services Task Force. Examples of covered services include cancer screenings and drugs that can reduce the risk of contracting HIV or lower the patient’s cholesterol (and similar preventive services). The Texas court has now issued a nationwide injunction, though the federal government is appealing the decision.

We asked two professors and authors of ALM’s Tax Facts with opposing political viewpoints to share their opinions about the recent Texas court ruling on the ACA preventive care mandate.

Below is a summary of the debate that ensued between the two professors.

Their Votes:

Thumbs down Bloink
thumbs up Byrnes

Their Reasons:

Byrnes: The argument against mandatory preventive services under the ACA is a solid one. Members of the preventive services task force are not appointed by the president or the head of a governmental department. Because of that, they should be independent and not subject to political mandates and pressures like the ACA preventive services mandate. Based on the letter of the law, the mandate is unconstitutional as written and enacted in practice.

Bloink: The preventive services mandate is in place for a reason. These services are designed to reduce the overall cost of health care by keeping people healthier in the first place. When people receive preventive care and screenings, they’re much less likely to contract more serious illnesses or experience complications. The mandate benefits all Americans, and there is no sound reason for repealing it.

Byrnes: The preventive care mandate requires doctors to provide services that can be politically charged or involve controversial issues. Not all medical professionals agree with some of the mandatory preventive services that are covered under the mandate.

Doctors and health care providers should have the freedom to practice as they see fit and to determine for themselves the types of services they are willing to offer.

Bloink: Health care services should be provided without any political motives getting involved. That’s exactly why this type of across-the-board mandate exists — so that doctors aren’t able to use their own political leanings and prejudices in determining what types of care patients deserve to receive.

Instead, the independent advisory committee evaluates various types of health care services and assigns value to these services so that patients are receiving the most valuable services without cost — and without worrying about whether personal prejudices are impacting the quality of care they receive.

Byrnes: The bottom line here is that the preventive care mandate is unconstitutional. The Appointments Clause of the Constitution is clear that the most significant government decisions must be made by individuals who are appointed as federal officers. The task force doesn’t satisfy that requirement, so the system is unconstitutional as executed in practice.

Bloink: The mandate also exists as an effort to remind ordinary Americans about the types of services that are worthwhile and can keep them healthy — so they aren’t forced to perform their own cost-benefit analysis and determine how to allocate their hard-earned dollars toward health care spending.

It can be extremely difficult for people to distinguish between valuable preventive care and low-value services that are more expensive than they’re worth. The mandate does that for them, by eliminating cost when it comes to the most valuable types of medical testing, screening and care.

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Robert Bloink

William H. Byrnes

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