Betting Money Is Now on Supreme Court Keeping ACA Largely Intact

It can be a tough job to predict how the Supreme Court will decide any one case. And with Justice Barrett being new to the court there's an extra bit of unpredictability. However, after oral arguments in California v. Texas on November 10, SCOTUS followers are predicting that enough justices will favor severability to keep the law intact.

Why the renewed confidence that the ACA will survive? Because several justices (and, for that matter, many conservative legal academics) have serious questions about whether the Supreme Court could justify rendering the entire law invalid under separation of powers and its own precedent.

The Constitutionality of the Individual Mandate

Texas is alleging that the individual mandate is now unconstitutional, despite a 2012 Supreme Court ruling, because the federal government no longer imposes a penalty for failing to buy health insurance. In a 2012 case, the Supreme Court upheld the individual mandate by a 5-4 majority under the taxing and spending clause.

Now that Congress has removed what made it act like a tax, Texas and other attorney generals argue that the statute is invalid. What's more, because the Affordable Care Act relies on the individual mandate to succeed, removing this part of the “three-legged stool" invalidates the entirety of the ACA. Including portions that, for example, prevent insurers from withdrawing coverage for people with preexisting conditions.

The Argument for Severability

Several Justices appeared skeptical of the argument against severability. Texas argued that since the ACA does not specifically mention severability if the individual mandate is unconstitutional, the Supreme Court must decide if Congress would have wanted the whole law struck down. Supporting this argument is the fact that Congress called the individual mandate “essential" to the law.

But Is Congress' Intent Really Unclear?

The argument above fails to account for the fact that Congress already cut out the portion of the law it didn't like – the individual mandate – and left the rest of the law intact. Congress had the opportunity to revoke the ACA in its entirety and did not do so. This case is somewhat unusual in that there is no need to guess at Congress' intent. Its actions speak clearly. If a Court were to invalidate the entire ACA, it would either have to find that:

• The law cannot survive without the individual mandate (despite having survived exactly that for the last three years); or
• Congress would rather have no law at all than the ACA without the individual mandate (ignoring Congress' actions in lowering the penalty to $0 in 2017)

This was exactly Chief Justice John Roberts' point at oral argument, stating flatly that “I think it's hard for you to argue that Congress intended the entire act to fall if the mandate was struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act." Similarly, Justice Kavanaugh said that this was a “straightforward case for severability under our precedents."

Nothing's Decided Yet

Of course, presuming that a justice will rule one way due to skeptical questions can backfire. The point of oral argument is so that counsel can address concerns a justice may have. We will have to wait to see the result. However, if both Justice Roberts and Justice Kavanaugh stick to the Court's precedents, there will be at least a 5-4 majority in favor of severability.

Related Resources

• Fifth Circuit Affirms Finding That the ACA's Individual Mandate Is Unconstitutional (FindLaw's U.S. Fifth Circuit)
• Is the Affordable Care Act Constitutional? What the Supreme Court Has Said So Far (FindLaw's Supreme Court Insights)