With the GOP almost certain to hold the Senate, millions of Americans will be defenseless if the Court decides to take away their health coverage.
One of the strangest spectacles during the confirmation of Associate Justice Amy Coney Barrett was the wave of Republican senators denying that she could possibly agree with the legal arguments that 18 Republican attorneys general presented to the Supreme Court in a case asking the justices to repeal the Affordable Care Act.
“No one believes the Supreme Court is going to strike down the Affordable Care Act,” Senate Majority Leader Mitch McConnell (R-KY) claimed in a debate on October 12, the same day Democrats in the Senate Judiciary Committee probed then-nominee Barrett over whether she would strike down Obamacare.
On Tuesday, the Supreme Court will hear oral arguments in California v. Texas, an attempt to repeal Obamacare through judicial decree that is widely viewed as risible, even by many prominent conservatives who aren’t senators feigning outrage at the suggestion that a Republican nominated to the Supreme Court might vote to strike down the law.
Yuval Levin, a prominent conservative policy wonk, wrote in the National Review that the Texas lawsuit “doesn’t even merit being called silly. It’s ridiculous.” The Wall Street Journal’s editorial board, a bastion of opinion writing friendly to the GOP, labeled this lawsuit the “Texas ObamaCare Blunder.”
Nevertheless, Judge Reed O’Connor, a federal district judge and former Republican Senate staffer who heard this case at the trial level, ordered the ACA repealed in its entirety; two Republican appeals court judges agreed with much of O’Connor’s reasoning in their own decision. So there’s a very real chance that the Supreme Court, which now has a 6-3 conservative majority, will seize this opportunity to end Obamacare.
The case rests on the theory that when Congress repealed a single provision of the ACA — the so-called “individual mandate” — in 2017, it actually introduced a fatal flaw into the legislation that requires the whole thing to fall. If the Supreme Court buys this dubious legal claim, it would mean that 20 million or more individuals could lose health coverage overnight.
And with Republicans well-positioned to control the Senate for at least the next two years, Congress is unlikely to do anything to correct this situation if the Court decides to strip health care from millions of Americans. That would leave former Vice President Joe Biden, in the likely event Biden becomes president, with a devilish choice to make: Defy the Supreme Court, or allow millions to become uninsured on his watch.
How we got here
As originally enacted in 2010, the ACA’s individual mandate required most Americans to either carry health insurance or pay at least $695 in additional taxes every year. The Court upheld this mandate as a valid exercise of Congress’s power to levy taxes in NFIB v. Sebelius (2012).
Seven years later, Donald Trump was president, and Republicans controlled both houses of Congress. They spent much of 2017 debating whether to repeal the entire Affordable Care Act. But Republicans ultimately lacked enough votes in the Senate to make a sweeping attack on the law; instead, they passed a broad tax bill that effectively repealed just one provision — the individual mandate.
Though the 2017 ACA amendment left in place the original law’s language stating that most Americans must carry health insurance, it reduced the tax penalty on people who don’t to zero dollars. So the individual mandate now does absolutely nothing.
The Texas plaintiffs claim this zeroed-out mandate is unconstitutional. If the original mandate was a valid exercise of Congress’s power to tax, they argue, a zero-dollar tax is no tax at all, and therefore the ex-mandate must be struck down.
It’s a clever sort of “gotcha” argument, but it’s also not immediately clear why it matters whether a provision of law that literally does nothing is constitutional or not. Right now, individuals have an obligation to either carry insurance or pay zero dollars. If the no-longer-a-mandate is struck down, everyone will still have the choice to either carry insurance or pay nothing at all.
To achieve anything that actually matters, the Texas plaintiffs have to do more than convince the justices that a nothingburger mandate is unconstitutional. They also have to prevail on two other points, and the plaintiffs’ arguments on those points would be laughable if thousands of lives weren’t potentially at stake.
No federal court should be allowed to hear the Texas case
Before anyone is allowed to challenge a law in federal court, they must show they’ve been injured in some way by that law, a requirement known as “standing.” But the Texas plaintiffs challenge a provision that does nothing, so no one should have standing to challenge it because no one is injured by a zero-dollar tax.
The plaintiffs try to get around this problem by pointing to how the ACA’s language laying out the mandate is structured. The first subsection of that segment of Obamacare says that most individuals “shall” carry insurance; the second says that people who don’t pay a tax penalty; the third sets the amount of that penalty, which is now zero dollars.
The plaintiffs rest their argument on the word “shall,” arguing this mandatory language still operates as a legally binding requirement to buy insurance, even if the penalty for noncompliance is nothing.
But this argument cannot be squared with the Supreme Court’s decision in NFIB. As Chief Justice John Roberts wrote in that opinion:
Neither the [Affordable Care] Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law.
So the Supreme Court already rejected the Texas plaintiffs’ argument that they are legally commanded to buy insurance. There are no “negative legal consequences to not buying health insurance,” other than the requirement to pay a tax penalty. And that penalty is now zero dollars, which means literally everyone has “fully complied with the law.”
The “severability” issue
Even if we assume these plaintiffs do have standing, however, they don’t actually argue that Obamacare as a whole is unconstitutional — they just argue that the zeroed-out mandate is invalid. Nevertheless, in the weakest part of the Texas plaintiffs’ argument, they argue the Court must repeal the entire law if the zero-dollar tax is invalid.
When a court strikes down one part of a statute, it often must ask whether other provisions of that statute should fall along with it. This inquiry is called “severability,” and it normally requires courts to engage in a bit of speculation by asking which hypothetical law Congress would have enacted had it known one provision of that law would be struck down.
But such speculation is unnecessary in Texas because Congress already told us what it wanted to happen if the individual mandate were abolished. Recall that lawmakers spent the bulk of 2017 debating how much of Obamacare to repeal before ultimately discovering that they lacked the votes to repeal anything more than the individual mandate. In other words, we know Congress would have enacted a law that eliminated the mandate and kept the rest of the law because Congress already eliminated the mandate and kept the rest of the law.
The Supreme Court, moreover, has held that courts should try to save as much of a law as possible if they determine that a single provision must be struck down. As Justice Samuel Alito wrote for the Court in Murphy v. NCAA (2018), “In order for other … provisions to fall, it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.’”
If the Court applies the rule it announced in Murphy, the bulk of Obamacare must be allowed to stand, even if the zeroed-out mandate is struck down.
The president could potentially protect many Americans’ health care if the Supreme Court strikes down Obamacare
With Republicans overwhelmingly favored to control the Senate next year, it’s unlikely there will be a legislative fix if the Court strikes down Obamacare. But there is a radical — though not unprecedented — step that a Democratic president could take to protect at least some of the millions of Americans who would lose their health coverage if the Texas case ends badly for them.
In his first inaugural address, President Abraham Lincoln did not simply criticize the Supreme Court’s pro-slavery decision in Dred Scott v. Sandford (1856), he attacked the very notion that the Court should have the final word on constitutional interpretation:
[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
Lincoln conceded that Dred Scott was binding upon the parties to that lawsuit, but he rejected the idea that either Congress or the presidency was bound by it. The Lincoln administration issued a passport to a Black man, defying Dred Scott’s holding that Black people cannot be citizens. And Lincoln signed legislation banning slavery in the territories, defying Dred Scott’s conclusion that slaves do not escape from bondage even after entering a free territory.
This idea that each branch of government has the authority to interpret the Constitution — even if one branch disagrees with the others — is known as “departmentalism,” a concept that gives the president at least some authority to limit the impact of a Supreme Court decision.
In the likely event he becomes president, and if the Court strikes down Obamacare, Biden could order federal law enforcement not to enforce the decision. He could also order the Treasury to provide subsidies to states and individuals entitled to them under the law, as well as pardon officials of the executive branch who pay out these subsidies, to protect them from a federal law that could plausibly subject them to prosecution in a future administration.
The president cannot neutralize a Supreme Court decision entirely. Lower federal courts are bound by decisions of a higher court, so no one would be able to obtain a court order against states or insurers that violate their obligations under Obamacare. But Biden could, at the very least, reduce some of the damage that a decision striking down the ACA would do to millions of Americans.
Author: Ian Millhiser
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