Yesterday, the Supreme Court, including a newly-sworn in Justice Amy Coney Barrett, heard oral arguments in California v. Texas, the case challenging the constitutionality of the Affordable Care Act (ACA). Unlike in previous challenges to the ACA, the federal government is not defending the law. Instead, a group of Democratic attorneys general and the House of Representatives are defending the law against a challenge from a group of Republican attorneys general (‘the plaintiffs’). The plaintiffs say that because the requirement to purchase health insurance no longer has a financial penalty, it is unconstitutional and the entire ACA must fall.
There are three main questions before the Court:
1. Do the plaintiffs have standing? That is, have the states suffered an injury?
2. If the plaintiffs have standing, is the individual mandate to buy health insurance unconstitutional?
3. If the mandate is unconstitutional, can it be cut from the law, or is the entire ACA unconstitutional?
Here are my seven takeaways from the oral arguments. Keep in mind that Justices’ questions and comments during oral argument may not be indicative of how they will rule, and they may engage in deliberate attempts to mislead listeners. But, with that disclaimer in place, let’s examine these three questions.
Do the Republican-led states have grounds to sue? Have they suffered an injury? These questions are important not only for this case, but also for the effect the Court’s decision in this case may have on precedent and future lawsuits.
· The Court seemed somewhat eager to avoid directly ruling on the ACA again. Justices focused a good portion of their questions on standing. If the Court rules that the Republican states are not injured by the ACA, it can avoid ruling on the merits of the case.
· Several Justices appeared skeptical that the plaintiffs are directly injured by the individual mandate, particularly because it is no longer enforced. For example, Justice Roberts noted that the plaintiffs’ theory “really expands standing dramatically,” because it would allow an individual who is not injured by the provision they seek to challenge to find something in a lengthy law like the ACA that does injure them. Justice Barrett also expressed a bit of skepticism here, questioning whether the parties named in the suit were actually causing the injury, given that the mandate is no longer enforced.
Is the individual mandate constitutional? The decision regarding the constitutional merits of the individual mandate seems likely to fall along ideological lines.
· Questions from the Court’s three liberal Justices (Breyer, Kagan, and Sotomayor) suggested they may defend the constitutionality of the mandate.
o Justice Kagan noted that the Court previously held that the mandate was not an unconstitutional command. After Congress reduced the penalty to zero, “how does it make sense to say that what was not an unconstitutional command before has become an unconstitutional command now, given the far lesser degree of coercive force?”
o Justice Breyer seemed to suggest that the individual mandate without a penalty was merely “precatory” language, a wish or request. He asked the plaintiffs how they can consider the mandate without a penalty as “something more than a supplication or an entreaty?”
· Conservative Justices expressed skepticism about the constitutionality of the individual mandate.
o Justice Gorsuch noted that the Court previously upheld the mandate under Congress’ taxing authority, but the mandate no longer has a tax penalty. This leaves as potential constitutional anchors the Commerce Clause, which was foreclosed as an option in a previous Court ruling, and the Necessary and Proper Clause. Gorsuch appeared unconvinced by the plaintiffs’ argument that the individual mandate could be justified as necessary and proper “because it leaves the framework of the taxing mechanism in place in case Congress wants to do it in the future.”
Can the individual mandate be cut from the ACA or does the whole law fall? Questions during oral arguments suggests there may be at least five Justices who support severing the mandate and allowing the rest of the ACA to stand.
· Chief Justice Roberts and Justice Kavanaugh appeared to accept the argument that if the individual mandate is unconstitutional, it may be severed from the rest of the law, allowing the ACA to stand.
o Chief Justice Roberts stated, “I think it's hard for you to argue that Congress intended the entire Act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the Act.” He later added, “Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question.”
o Justice Kavanaugh was even more direct, saying “it's a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the Act in place, reading our severability precedents.” He later said, “it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the Act in place.”
· The Court’s three liberal Justices (Breyer, Kagan, and Sotomayor) have defended the ACA in the past and gave no indication their position had changed.
o If the case comes down to a ruling on severability, these three Justices, together with Roberts and Kavanaugh, could make up a five-vote majority to severe the mandate and allow the rest of the law to stand.
· Justices Thomas, Alito, and Gorsuch appeared to support striking down the entire law. Justice Thomas called the individual mandate the “heart and soul” of the ACA and Justice Alito used many of his questions to come to the plaintiffs’ defense.
A decision is expected by the end of Court’s current term in June 2021.
Jacqueline Lampert is a Principal with the Rockingstone Group. She was a senior Senate staffer during the writing, negotiation, and passage of the Affordable Care Act.