It seems like a lifetime ago, but the Supreme Court case challenging the constitutionality of the Affordable Care Act (ACA) is still alive and kicking, and I wanted to check in and see where it stood. By previous scheduling standards, arguments should have been scheduled for the 2019-2020 session, with a ruling in less than six months before the election, but Chief Justice John Roberts is hyper-conscious of his legacy and the perception of the court becoming more and more politicized, so the case was scheduled for a time when a ruling would not have a direct impact on the election.
Just to recap, in California v. Texas, 18 state attorneys general, two governors, and two individuals (Texas) are suing to have the ACA declared unconstitutional, but 17 attorneys general and the U.S. House of Representatives (California) are pushing back. A lower court has already ruled that the ACA is unconstitutional (using sketchy reasoning), but the Texas federal judge said that any action had to wait until after the Supreme Court ruling. If the Supreme Court upholds the lower court’s ruling, and the rights guaranteed by the ACA would no longer be protected.
The questions to be answered are:
1. Do the plaintiffs have standing to bring the lawsuit? In other words, can the plaintiffs prove that they (their constituencies) are being directly harmed by the ACA?
2. Now that the individual mandate (buy insurance or else be penalized by being taxed) has been neutralized by making the penalty $0, is the non-penalty constitutional?
3. If the individual mandate is unconstitutional, is the rest of the law unconstitutional (can the mandate be severed from the rest of the law and the law still function as intended, otherwise known as severability)?
Oral arguments took place on November 10th. Those more educated than I on the language and habits of the nine justices suggest that in addition to the three left-leaning justices, two of the conservative justices asked questions that indicate that they believe that severability is possible. One justice indicated he thought severability was not possible. That leaves three who gave nothing away. Arguments were less clear on standing.
In addition, the Department of Justice has formally changed its position. The Trump Administration had previously declared a position supporting standing and inseverability and refused to defend the law in court. The Biden Administration has added its support to California’s efforts, although it won’t be making arguments to the Supreme Court.
Though the case is as unlikely to succeed now as it was when it was first brought, there is still real danger here. The make-up of the court has changed, including three new justices, one of whom has a long track record of opposing the ACA. Questions asked during oral arguments are not always accurate predictors of how a justice will come down on an issue. And the Roberts Court has been known to surprise us.
I’ve worried about this case for three long years, but it finally feels like we’re in the home stretch. Hopefully, we will have something concrete earlier in the summer than later, and I am glad a ruling is only a few months away. (There is no solid end date to the term, but the last scheduled day is June 28th.) There’s not a lot to do in the meantime – the Supreme Court is about as leak-proof as it gets in Washington – but look out for updates in about eight weeks.