There have been numerous diaries, by staff writers, and community authors who have discussed the issue of the pending ACA case, California v Texas, scheduled for oral argument on November 10th, and the presumption that ACB, if she is confirmed, will vote to end the ACA, and that her vote will be the margin that will deny millions of the health insurance they now receive through the ACA. In addition, Dick Durbin (D-IL), the Democratic Whip in the Senate, stated on the Sunday morning Meet The Press show that the vulnerability of the ACA would be the primary issue the Democrats would use to exert pressure on GOP Senators, directly and through their constituents, to delay Barrett’s confirmation hearing, or deny her confirmation. Based on her opening statement presented as the confirmation hearings began this morning, Senator Diane Feinstein (D-CA), the ranking member of the Judiciary Committee, is following that plan, making the ACA a key issue in this confirmation.
The view of those who are convinced that Barrett is the key vote to overturn the ACA is based on Barrett’s comments that she believes the initial challenge to the ACA, National Federation of Independent Business v Sebelius (2012), was wrongly decided. In that initial case, the Chief Justice, John Roberts, sided with the four liberals and voted in favor of the constitutionality of the statute. While Roberts rejected Congress’ primary claim that it had authority under the Commerce Clause, he accepted the argument that the mandate, which was the critical constitutional issue at hand, was a tax and within the Congress’ taxing powers. The dissent argued that the mandate was an unprecedented and unconstitutional Congressional act, requiring all adults to purchase health insurance (including in many cases from for-profit companies) and that the legislative history was clear that it was not a tax. During the drafting, debate and approval of the ABA the Congressional leadership, and President Obama, spared no words in declaring the mandate and penalty were not a tax. Barrett has claimed that in her view the dissent was the appropriate decision in the initial case. But does that mean that she, or the other conservative Justices now serving, would automatically vote to nullify the entire ACA when voting in the current case, to be heard shortly after the election? As outlined by an article from the Kaiser Family Foundation, which I have linked below, The entire law has many provisions including;
protections for people with pre-existing conditions, subsidies to make individual health insurance more affordable, expanded eligibility for Medicaid, coverage of young adults up to age 26 under their parents’ insurance policies, coverage of preventive care with no patient cost-sharing, closing of the doughnut hole under Medicare’s drug benefit, and a series of tax increases to fund these initiatives.
Both the House of Representatives, and the Department of Justice have entered the case, and have been given time in oral argument which has been expanded to eighty minutes. The federal government has argued for different, and more limited, outcomes than the red states who are looking for a total repeal. This article by the Kaiser Family Foundation is a good summary of the case, and the various outcomes sought be each of the parties.
www.kff.org/...
The case, California v Texas, raises three issues. The first question is whether the red states who are party to the case, led by Texas, or two individual consumers, have legal standing to challenge the law? The second question is whether Congress, in legislation passed in 2017, The Tax Cut and Jobs Act (TCJA) rendered the law’s individual insurance mandate unconstitutional by eliminating the tax penalty that had been attached to the mandate? If the court finds the individual mandate unconstitutional, the third question is whether the mandate is so intertwined with the rest of the law that the ACA’s other provisions must be struck down?
STANDING
Do any of the plaintiffs have standing? Both the trial court, and the Fifth Court of Appeals, both of which ruled that the lack of a monetary penalty thereby eliminating the “tax” made the ACA unconstitutional, ruled that the plaintiffs have standing, but there are legal issues for both the states and individual plaintiffs that could allow the Court to dismiss this case by ruling that the the plaintiffs don’t have standing, although that isn’t expected.
THE MANDATE
Did the 2017 legislation, the TCJA, which reduced the mandate to zero, eliminate the “tax” thereby making the ACA unconstitutional? Interestingly because the TCJA was passed through reconciliation, which limits what kind of legislation can be passed with a simple majority in the Senate, the penalty under the mandate was reduced to $0.00, but the mandate is still in the ACA statute. A Congress controlled by Democrats in January, 2021, could reinstate a monetary penalty, even a nominal one, and potentially make this case moot, before the SCOTUS rules on the case next Spring.
SEVERABILITY
If the mandate is unconstitutional does it mean the entire ACA should be overturned? This is the question that has the most attention. The Court starts with an understanding of the “severability doctrine” the premise that Congress prefers that it’s statutes be maintained, even if parts of them are struck down by the federal courts. John Roberts has claimed that severability is “a scalpel rather than a bulldozer”. During the past term the Court has used this doctrine to save two Congressional statutes Seila Law v CFPB and Barr v AAPC, both decided 7-2. To quote from Roberts opinion in Seila:
W]e try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact. … We will presume that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision … unless there is strong evidence that Congress intended otherwise.
While Justices Clarence Thomas, and Neal Gorsuch have expressed concerns about the Court’s ability to “blue pencil” Congressional statutes, the remaining Justices have embraced what Justice Brett Kavanaugh recently described as “ordinary severability principles”. While the ACA does not have an explicit “severability clause” the bias is toward keeping the rest of the law intact, unless “the surviving portions of the Act are incapable of functioning independently”. Because the mandate was set at zero beginning on Jan 1, 2019, and the Act has continued to effectively operate, it provides clear evidence that the Act can still function with no financial penalty. As it turns out, in practice, the subsidies seem much more important than the mandate. In addition, Congress had the opportunity in 2017 to overturn the entire Act, but didn’t.
Interestingly it may be Justice Kavanaugh who may provide a critical vote for continuing the ACA, as his opinions regarding severability have been acknowledged by a majority of the Court. Kavanaugh has stated that:
“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.”
What role will Amy Coney Barrett play in this case, if she is confirmed in time to sit during oral argument? I think that’s unclear. We can always speculate, and many have and will, but the legal issues before the court are much different from the initial 2012 case where ACB has rendered an opinion. Plus, even if ACB votes to completely overturn the entire ACA will there be four additional votes to join her? It seems to me that there are five possible votes to keep the law in place on the severability question, Roberts, Kavanaugh, Elana Kagan, Sonia Sotomayor and Stephen Breyer, but it is impossible to know in advance.
What happens if the entire ACA is overturned? First, no decision will be made before the new Congress is seated in January, 2021, and if the ACA is overturned it will likely be announced in the Spring. In addition, I think the Court would keep all of the ACA policies and provisions in place through 2021 to allow for an orderly transition, and allowing Congress to pass a new law that would comply with whatever constraints the Court puts in place in their majority opinion.
I found this article at scotusblog.com to be very informative:
www.scotusblog.com/…
WHAT HAPPENS IN A 4-4 TIE?
What happens if ACB isn’t confirmed at all, or not until after the ACA case is presented in November?
If there is a tie the case would go back to the 5th Circuit where that court had confirmed the trial court’s ruling that the mandate was unconstitutional now that there was no “tax”. However, the 5th Circuit had sent the case back to the trial court to litigate some of the issues addressed above, including the issue of severability. The states, on both sides, and the House of Representatives asked the Supreme Court to step in when the 5th Circuit sent the case back to the trial court, and the SCOTUS accepted the case, although it was scheduled for oral argument later than some of the parties had hoped. If there is a tie it would seem that the case would go back to the trial court, and the litigation would start again on the unresolved issues. The federal courts have kept the ACA in force during all of this litigation, and there is no reason to think that wouldn’t continue.