Revisiting the Affordable Care Act in mid-pandemic and post-election

A decade after enactment of the Affordable Care Act, more commonly known as Obamacare, the U.S. Supreme Court is being asked once again in California v. Texas to decide whether the law will survive in whole, in part, or not at all.

In 2012, a 5-4 majority, composed of Chief Justice John Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, upheld the constitutionality of the then-controversial health insurance law. Four justices—Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito Jr.—would have struck down the entire law as unconstitutional.

The central issue in 2012 was the individual mandate to purchase health insurance or to pay a tax penalty for going uninsured. The mandate is once again at issue in the Supreme Court but in a very different form. The court that will hear arguments Tuesday is itself very different from the court in 2012. Justices Kennedy, Scalia, and Ginsburg are no longer on the court. And instead of an ideologically balanced court of five conservatives and four liberals, the court is now six conservatives and three liberals. Three new conservatives have joined the court since 2012: Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Another difference, not a legal one but a social-political one, is that the law seems no longer unpopular, according to polls and surveys. Particularly popular are the law’s “guaranteed issue” provision which prohibits health insurers from denying coverage for pre-existing conditions; its “community rating” provisions which bar insurers from charging higher premiums for individuals with health conditions, and provisions allowing parents to insure their children up to age 26. More than 20 million Americans depend on the law for insurance and during the current pandemic in which many workers have lost their employer health insurance along with their jobs, the federal law has become a lifeline, quite literally.

Will those provisions and popular sentiment matter? We can only be sure that the justices are aware of them. And no justice perhaps is more aware than the newest justice—Amy Coney Barrett. Democratic members of the Senate Judiciary Committee made the legal threat to the Affordable Care Act the centerpiece of their opposition to Barrett’s Supreme Court nomination. Given President Donald Trump’s many comments seeking an end to the law and at least one article in which Barrett criticized the court’s 2012 ruling, those Democratic senators doubted her comments that she “has no agenda” with respect to the law. Barrett undoubtedly will be listened to closely during the arguments.

When the justices upheld the law in 2012, Chief Justice John Roberts Jr., writing the majority opinion, said the individual mandate had all the elements of a tax, for example, it raised revenue and was enforced through the Internal Revenue Service. As a tax, the mandate was constitutional under Congress’ taxing power. But in 2017, Congress eliminated the tax penalty and thus, argue the challengers, it left in place an unconstitutional mandate.

“During arguments Tuesday, the justices will work their way through three issues. The first issue is a threshold one that all federal courts face: Do the challengers have a right to bring their lawsuit—do they have “standing” to sue? They have to show the court that they are injured by the action in a concrete way and that the court can remedy that injury. The challengers’ arguments in favor of standing are viewed by their opponents and a number of procedure experts as weak, but if a majority of the justices want to get to the merits of the case, standing won’t stop them.

The second issue is the merits question: Is the mandate unconstitutional because of what Congress did in 2017? The act’s defenders argue that if Congress can impose a tax penalty under its taxing power, it also can eliminate it. What remains, they contend, is a provision that does not require individuals to do anything. Citizens have a choice—buy insurance or don’t. The mandate now stands as an encouragement to insure and not as a requirement.

Finally, if a majority of justices agree the reformed mandate is unconstitutional, they will decide if the entire law must fall or if the mandate provision can be “severed” from the rest of the law. This issue involves the doctrine of severability. There is generally a strong presumption in favor of saving a law if possible by cutting away the unconstitutional part.

The Republican state attorneys general argue that the mandate is indispensable to the guaranteed issue, community rating, and many other provisions in the act and so it cannot be severed. The entire law must be invalidated. But the Democratic state attorneys general counter that Congress left all of those other provisions intact after defanging the mandate—a strong indication of congressional intent to keep the rest of the law. And, they add, the law has been working just fine since 2017 without the tax penalty.

No one knows what the court will do, of course, and no one knows what impact the recent election will have, if any, on the law going forward. President-elect Joseph Biden is a strong supporter of the law that was enacted during his term as vice president in the Obama administration. He has said he wants to build upon it. If struck down in its entirety, there is little likelihood that a Republican-controlled Senate—still undecided-- would enact something similar at his behest even though Republicans claim to want coverage for pre-existing conditions.

And if the court strikes down the mandate but saves the rest of the law, then, in a sense, no harm, no foul, which may be the easiest route for a majority of justices, including those who did not support the law in 2012, to take.

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.