Yesterday, the Supreme Court heard oral arguments in California v. Texas, the case that threatens to strike down the Affordable Care Act. Those arguments went surprisingly well for defenders of the ACA—as well as anyone could reasonably have hoped, in the face of a court stacked with six conservative jurists. The future of the ACA is still uncertain, and we won’t know the court’s decision until at least January and most likely June. But based on what I heard, I think the ACA has a chance to survive this latest frivolous and intellectually dishonest attack.
To understand yesterday’s hearing, we have to wind the clock back to the 2012 Supreme Court case National Federation of Independent Business v. Sebelius. That’s the case in which the majority, led by Chief Justice John Roberts, upheld the ACA, ruling that the individual mandate is a constitutional use of the government’s power to tax. That should have ended the GOP’s will to kill the law, but of course it didn’t, and after failing to repeal the law in the summer of 2017, the Republican-controlled Congress amended it that fall. The Tax Cuts and Jobs Act dropped the tax penalty from the individual mandate to zero. Since the tax had been canceled, Republicans hoped the Supreme Court would then rule the entire ACA unconstitutional. Their argument, currently being advanced by a collection of 18 attorneys general from Republican-controlled states, is that if the individual mandate is not a tax (because there is no tax), there is no constitutional basis for the law.
But accepting this core Republican argument has always required an incredible level of bad faith. That’s because courts are supposed to presume that Congress does not make laws (or amendments to laws) that are intentionally unconstitutional. Congress had the opportunity to repeal the ACA in 2017 and, famously, did not. The courts are not supposed to be a backdoor way for Congress to nullify laws it does not have the votes to repeal.
If the Supreme Court upholds this basic tenet, the ACA should survive Congress’s bad-faith attempts to kill it. On the flip side, to strike down the ACA, the Supreme Court has to accept three intellectually dishonest Republican arguments, in succession: The court has to rule that Republican plaintiffs (the aforementioned collection of 18 attorneys general) have standing to object to the ACA; they have to rule that the individual mandate has become unconstitutional; and then they have to rule that the unconstitutional poison pill inserted into the ACA renders the whole law unconstitutional.
At oral arguments, it did not appear that lawyers for the Republican AGs convinced five of the justices to go on all three rides.
Most of the questions from Roberts and Elena Kagan focused on standing. In order to dispute the legal merits of the ACA, Republican plaintiffs first have to argue that the ACA causes them some harm, and that’s actually pretty hard for them to do. What harm is there in buying health insurance when Republicans have already eliminated the penalty if you do not? What harm is there to the state of Texas (or the 17 other states) in allowing people with preexisting conditions to buy health insurance at reasonable rates?
Roberts loves to dismiss cases on technical legal grounds like standing. It allows him to keep the court out of decisions that might look “political” without ever getting to the legal merits of the various arguments. And in the bargain, it allows him to further his long-term goal of squeezing off access to the courts for many plaintiffs. I don’t like arguments based on standing, but if you are a conservative who claims to believe in “judicial restraint,” then standing should be your jam.
Unfortunately, most Republicans don’t believe in judicial restraint; they believe in activist conservative judges who do through the courts what Republicans cannot do at the ballot box. While Roberts and the three surviving liberal justices seemed amenable to kicking the whole case on standing, the death of Ruth Bader Ginsburg probably means there’s no longer a fifth vote to defeat this ACA challenge on standing. This will probably be the first time we see the “Amy Coney Barrett effect” on the court.
So that moves us to the second argument: the question of the constitutionality of the newly zeroed-out individual mandate. On this point, all six conservative justices sounded ready to strike it down. They gave Republican lawyers little pushback on those arguments. Justices Stephen Breyer and Sonia Sotomayor were having none of it, however. Breyer was downright feisty when pushing back on the notion that the ACA has suddenly become unconstitutionally coercive now that it’s not generating money. The liberals further pointed out that a new administration and Congress (ahem) might decide to restore the individual mandate’s tax penalty—returning the law to its original form, which, of course, the court has already ruled constitutional.
Still, I think we have to assume that the individual mandate is dead as a constitutional proposition. I did not see two votes from the conservative wing to save it.
Which means the fate of the ACA comes down to the question of severability.
This shouldn’t be a difficult question for the court to answer. Think of it this way: By zeroing out the individual mandate, Republican lawmakers, in their infinite wisdom, decided to give the ACA gangrene. The judicial solution should be to cut off a leg, not decapitate the patient. The technical legal term for this kind of Supreme Court surgery is called “severability.” Courts do it all the time.
Legally, the ACA should survive the loss of the individual mandate, and many are confident that Roberts agrees. But without Ginsburg, there needs to be at least one other conservative to vote for this obvious thing.
And so the biggest moment of the hearing came when alleged attempted rapist Brett Kavanaugh said the obvious part aloud. Kavanaugh told former Obama solicitor general Don Verrilli, arguing on behalf of the Democratic-led House of Representatives: “I agree with you that this is a straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”
That one line may well save the whole law. Kavanaugh will probably give the red states standing to make their ridiculous claim, and he’s going to join the ruling that the individual mandate is unconstitutional. But if he applies the “straightforward” precedent on severability, as his comments suggest he will, then the rest of the ACA should survive.
A lot needs to happen between today and an actual majority opinion upholding the ACA. Justices Clarence Thomas and Samuel Alito will likely try to convince Kavanaugh to come over to their view, and Kavanaugh always seems like the kind of guy who can be peer-pressured into stealing the change bucket from a homeless man if his frat brothers put the screws to him. Moreover, the argument that the Supreme Court should rule the mandate unconstitutional and kick the severability question back down to the conservative US Court of Appeals for the Fifth Circuit, setting up another Supreme Court showdown on the ACA next year, could still be in play. It was hard to get a clear read on Barrett during only her third week on the job. There are still a lot of pitfalls.
But given the universe of possible oral arguments, this one was as good as it was likely to get. The ACA might barely survive this frivolous and baseless attack on its constitutionality. Republicans who want Democrats to be placated just enough to accept permanent conservative control of the Supreme Court will be thrilled. This could be the kind of big-ticket ruling they use to argue their side is “reasonable,” especially if another seat opens up that Mitch McConnell refuses to let President Biden fill for four to eight years.
Meanwhile, Donald Trump has about 70 days left to unveil his health care plan.