Note: After the decision was handed down, I made an "update post" here.
Due to my procrastination in posting, this article is much less relevant than when I originally started writing it, but I figure I might as well post it anyway.
After the death of Ruth Bader Ginsburg, Amy Coney Barrett was nominated to replace her on the Supreme Court, and she was just confirmed. Prior to this, and undoubtedly more will follow, there was much fearmongering about the effect she would have on the direction of the Supreme Court, particularly in regards to the Affordable Care Act. There were other things brought up, but the Affordable Care Act, also known as Obamacare, took center stage.
It makes sense politically to do so. After all, the Affordable Care Act is quite popular right now, about the most popular it's ever been; it makes more sense to focus on something like that than the more controversial issue of abortion which risks backfiring. More importantly, it's more immediate, with the Supreme Court about to take up a case on it (California v. Texas) to be argued about a week after the election. Warning about the dangers of something that's about to happen definitely plays better than warning about something that might happen down the line.
But is there an actual existential danger to the Affordable Care Act? The answer is, quite frankly, no. There is virtually no chance that the Supreme Court will actually strike it down. At most, they will strike down the currently irrelevant individual mandate and leave the rest of the law intact. Why? Well, that's why you're reading the article!
Most of this article was written before the oral arguments occurred. There is not really much in them that I feel changes this analysis, however.
The Background:
Before we get into the new case, we need to look at the background. After the Affordable Care Act was passed, there was a lawsuit against it, alleging that its "individual mandate" (the requirement that people buy health insurance or pay a fine) was unconstitutional.
Now, some people get confused by this. After all, basically every state requires people to purchase car insurance. Why is this a problem, then? The answer is that it's the federal government doing it. Unlike states, which can enact any law so long as it isn't forbidden by the Constitution or a federal law, the federal government's ability to enact law is limited to its "enumerated powers." These are found principally in Section 8 of Article I, though some amendments have added powers. So for the government to enact a law, it must be something authorized by the enumerated powers. There are things the federal government does not have power to do but states can. So it is perfectly consistent for states to have a regulation power but not the federal government.
One of the enumerated powers is that congress has the the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". The phrase "among the several States" is the key point here. It allows the federal government to regulate trade among the states--in other words, it can regulate interstate commerce (commerce between states), but not intrastate commerce (commerce within a state). There is also the Necessary and Proper Clause, which says that congress has power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" (including regulating interstate commerce).
There has been much debate, naturally, as to how far this extends, with some taking an expansive view and others taking a much more limited one, and indeed disagreement on that played out in the case in question, National Federation of Independent Business v. Sebelius. This was the first challenge to the Affordable Care Act. It was argued that the individual mandate exceeded the power authorized by the Commerce Clause. The outcome was that 5 justices (John Roberts, Samuel Alito, Antonin Scalia, Anthony Kennedy, and Clarence Thomas) agreed that it exceeded the Commerce Clause. 4 justices disagreed, believing it did not exceed it (Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, and Elena Kagan). However, Roberts opined that the individual mandate qualified as a tax, and thus was justified by a different power granted to congress, the Taxation Clause ("The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises"). It should be noted that Ginsburg, Sotomayor, Breyer, and Kagan did agree with Roberts that it qualified under the Taxation Clause; however, as noted, they believed it also qualified as regulation of interstate commerce.
There were other aspects in the decision, such as the Medicaid Expansion, but they aren't of concern in the current case so I'll skip over them. The point is that we had a majority ruling (5 justices) that it was justified as a tax but a separate majority that it exceeded the commerce clause, with Roberts being the only one in both of those ideas. There were some other legal arguments regarding the Affordable Care Act in other cases but again they do not really relate to the present question.
While I know that was long, it's important to know the background so we can fully understand the next case. Now let's get to it.
The Current Case:
Later on, the Republicans managed to win back the Senate, House, and
presidency in 2016 and set about trying to get rid of the ACA and
replace it with something they thought was better and didn't include the
disliked individual mandate. They weren't able to get the votes
together, however, so instead they settled to changing the penalty for
the individual mandate to $0. So while you are still technically
compelled to buy insurance, there is no functional penalty for not doing
so; this effectively abolished the individual mandate.
This, however, launched a new argument. If it's $0, it doesn't qualify as a tax, as they're not collecting tax, right? That would mean that it is no longer justified under the Taxation Clause, and thus it would have to be the Commerce Clause, which the Supreme Court said the individual mandate exceeded, so it would be struck down, right?
And so the Affordable Care Act was challenged in court. Now you might be wondering why the answer to the questions in the previous paragraph aren't both "yes." There are two major problems with the new lawsuit that did not apply to the original.
The first is what is known as standing. In order to sue over a law, you have to actually demonstrate you got injured by it somehow. Many cases have been dismissed for lack of standing. And it is indeed rather counterintuitive to try to argue that someone is injured by a law when there is no penalty for breaking it.
The second, and more important, is severability, and that is what I am going to devote my attention to. Severability means that if a portion of a law is unconstitutional, you don't necessarily have to strike the whole thing down. The main question is how essential the unconstitutional portion is to the larger law. A law regarding the citizenship process that randomly requires first graders to promise to follow the Ten Commandments could have the obviously unconstitutional latter portion removed but leaving the rest intact.
In the original case, there was a strong argument to be made that the individual mandate could not be severed from the law because it was critical to it. I believe even the Obama Administration argued as such in th ecase. But at the moment, the individual mandate is toothless. The idea that such a now-irrelevant portion of the law is critical to the entire thing doesn't make much of any sense. While it is true the congress that passed the law may have seen it as critical, the later congress that zeroed out the individual mandate obviously disagreed (given the fact they zeroed it out). Remove the individual mandate, which does basically nothing, leave the rest intact, and life will go on essentially just as it did before the lawsuit. Even if they accept the argument that the plaintiffs have standing and go all the way up to declaring the individual mandate unconstitutional, it's hard to believe the Supreme Court would somehow conclude the toothless individual mandate is critical.
But you might ask, if this is so obvious, why did the lower courts say the argument against the individual mandate were correct? This is a claim often brought up by those worrying; "if this case is so silly, then why did lower judges rule in favor of the plaintiffs?" Well, let's look at the chain. First we have the original decision by Reed O'Connor, a Texas federal judge. It claimed the plaintiffs had standing, the taxation argument doesn't work, the individual mandate is unconstitutional according to Supreme Court precedent, and that it can't be severed, and thus the whole thing should go. His opinion got a good amount of criticism for being flawed, even among opponents of the Affordable Care Act. The problem is that O'Connor is, as I understand it, known for being a bit of a conservative activist. People will apparently deliberately file cases in his jurisdiction to obtain favorable results.
But more importantly, O'Connor was the only one to actually declare it to be struck down. This decision got appealed, of course, and the majority opinion of the Fifth Circuit Court said that it agreed with his analysis... up until the point of severability, which it found questionable but did not explicitly say was wrong. So it sent it back to him with instructions to make a new analysis as to what parts would need to be struck down. This court thus never reached a conclusion regarding severability.
Ordinarily this would have gone back to the lower court, a new decision possibly made, and then possibly appealed again if necessary. But wanting a more definite answer quickly, especially considering what a major deal this was, you had a lot of people basically begging the Supreme Court to take up the case right away so people wouldn't be waiting around wondering what was going to happen with the Affordable Care Act. With various states asking the Supreme Court to take it up, the Democratic-controlled House of Representatives asking them to take it up, and the Republican-controlled White House asking them to take it up, the Supreme Court apparently said "okay, fine, we'll do this." The Supreme Court taking it up, contrary to what some claim, doesn't indicate that the argument is good, just that everyone needs a resolution right away.
So really we've only got one person who ruled the entire Affordable Care Act is unconstitutional, with the higher judges saying the individual mandate is unconstitutional now but maybe the rest of the law isn't. The claim that judges have bought into the argument the entire Affordable Care Act needs to go isn't true.
But you may think a lot of that is theorycrafting. The Supreme Court has bought into bad arguments before. So let's look at it pragmatically in terms of the justices themselves.
The Pragmatic Analysis:
Three members of the current Supreme Court (Kagan, Breyer, and Sotomayor) all asserted that the individual mandate was justified under the Commerce Clause. It is unlikely that any of them have changed their mind. Thus, all of this quibbling over taxation is of no concern to them. So that's three votes ready. Remember: One needs only five votes to win a case.
Next we come to the obvious case: Roberts. Originally he did apparently believe that the individual mandate was unconstitutional and wanted to strike it down, but was reluctant to take the entire law with it (see here). Ultimately he decided to use the Taxation Clause to justify it, thereby saving himself that problem. But note that fact--Roberts, when there was a much stronger argument that the individual mandate couldn't be severed fro the Affordable Care Act, was hesitant to strike the entire thing down. If he was hesitant then, how much more he would be now!
But you might say that that's relying a bit too much on unknown sources as to what went down behind closed doors. So let's look at actual opinions.
In Seila Law v. Consumer Financial Protection Bureau, the Supreme Court ruled that a portion of the law establishing the Consumer Financial Protection Bureau was unconstitutional, but that it was severable from the rest of the law establishing the CFPD; thus, the CFPD could continue to operate. Roberts spends some time in the opinion (joined by Alito and Kavanaugh) discussing severability, affirming a philosophy that would indicate that, yes, the individual mandate is quite severable.
Speaking of Kavanaugh, in the recent decision Barr v. American Assn of Political Consultants, the Supreme Court declared that a portion of the law banning robocalls was unconstitutional... but the rest could stay. Kavanaugh (joined by Roberts and Alito) bluntly states in his opinion:
"Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute."
Further, in a law review article published back in 2016 (scroll down and click on the "PDF" link to see the whole thing), Kavanaugh made an interesting statement that I feel I must quote at length. Note that NFIB means National Federation of Independent Businesses... he's talking about the original Affordable Care Act ruling here:
Of course, severability principles are their own separate mess. As currently framed, severability doctrine requires the judge to sever the offending provision from the statute, to strike down the entire statute, or to perform some other surgery. In deciding among this menu of op- tions, the court must in part assess what Congress would have wanted and whether the statute would be workable without the offending provision.
But how can the court determine what Congress would have wanted? For instance, in the NFIB case, the dissenters tried to determine whether Congress would have enacted the health care law without the provisions the dissenters deemed unconstitutional. They said no. But how can we know? Is that really what then–Speaker of the House Nancy Pelosi, then–Senate Majority Leader Harry Reid, President Barack Obama, and all the Members of Congress who voted for the bill, would have wanted? Is this even the right question to be asking?
Courts can reform principles of severability as well. For instance, courts might institute a new default rule: sever an offending provision from the statute to the narrowest extent possible unless Congress has indicated otherwise in the text of the statute. This default rule has the benefit of stopping judges from trying to guess what Congress would have wanted, an inherently suspect exercise. And it has the additional benefit of telling Congress what to expect.
Regarding NFIB, some contend that at least the narrowest version of the severability principle could have led to the same bottom line (eliminating the legal mandate but keeping the tax penalties on those who fail to have insurance). Others disagree with that notion. I take no position here on how severability could have been applied in that case, which is an extraordinarily difficult question in its own right.
In any event, for all the reasons mentioned above, it may be worth trading off increased reliance on severability principles in exchange for decreased reliance on clarity versus ambiguity determinations in invoking the constitutional avoidance doctrine.
This is especially notable considering the fact he refers to the Affordable Care Act case. It is this case in view in which he suggests that perhaps the Court should strive for a narrow severability doctrine, to leave as much of the law intact as possible. While he does couch himself with "I take no position here on how severability could have been applied in that case" the fact he suggests it with this case in view is extremely notable.
Interestingly, there's something else in regards to the Affordable Care Act he wrote. Before it made it to the Supreme Court, various lower courts ruled on it, and he ruled in it. His opinion managed to actually avoid a real discussion of the law on the merits, saying they lacked jurisdiction on the basis that the penalty had not actually been enforced yet. While I've demonstrated there is strong reason to accept he would see the individual mandate as severable, this indicates he may also find the argument of lack of standing plausible.
So we have now counted to 5 justices who seem very, very likely to uphold the law, give or take the largely irrelevant individual mandate. But what of the others? Alito is harder to tell, but it should be noted he joined both Robert's Seila Law opinion and Kavanaugh's Barr opinion.
Thomas and Gorsuch did not join those opinions, but that is because they are now of the belief that the current severability analysis is in error. As I understand it, it amounts to saying the Supreme Court shouldn't be trying to figure out what parts are severable from what, and that they should instead just issue relief for those injured by unconstitutional portions of laws. Under such an analysis, again as I understand it, the individual mandate being unconstitutional would not affect enforcement of the rest of the law.
That leaves Barrett. While people have made much of the fact some of her past writings indicated preference for the dissent in the original case, we should consider a more recent--and more relevant--action she took.
Shortly before Ginsburg's death (and thus without any knowledge she she could be appointed to the Supreme Court in a matter of months), Barrett took part in a "mock court" exercise concerning the upcoming Affordable Care Act decision. She, along with 7 other judges, heard mock arguments about it and then issued a decision. That decision was 5-3. The majority ruled that the individual mandate was unconstitutional, but was severable from the rest of the law. The dissent ruled that the plaintiffs lacked standing. The votes were anonymous, but whichever side Barrett fell on, it means she ruled in favor of the Affordable Care Act as a whole. In the confirmation hearings she stated she fell on the "unconstitutional but severable" side, for whatever that is worth.
Obviously, a mock court is a mock court. You could rule differently in an actual decision. But it would seem to me that if we're trying to guess what she'd do, this provides far more proof than statements concerning an earlier case.
Considering all of this, it would be a stunner if the Supreme Court strikes down the entire Affordable Care Act. In fact, . While I expect there will be fractured reasoning, it is quite likely that we'll see not a single justice vote to strike down anything more than the individual mandate.
Thus the evidence strongly, strongly means there is no reason to worry about it being struck down in total. While there is theoretically the possibility of enough justices deciding to be conservative judicial activists and strike it down, there is also theoretically the possibility that Washington, D.C. will undergo a seismic political shift and will vote overwhelmingly for the Republican presidential candidate in the 2024 election.
There may be some things to worry about in regards to the Supreme Court
in the future, particularly if you're of a liberal persuasion. But the
Affordable Care Act being struck down in its entirety is not one of
them.
And so these are my totally random thoughts on the subject, naturally posted past the point people really cared about it, and in less than a year these thoughts will be moot because a decision will be handed down. This is the kind of amazing quality analysis you can expect to find on this blog!
(Other analyses that say similar things to what I have said can be found here and here).