Supreme Court will hear latest attack on ACA next term

President Donald Trump has railed against the Patient Protection and Affordable Care Act since becoming president. He has promised his "beautiful" health care plan more than 250 times since taking office in 2016. Although he hasn't delivered on his promise, Trump's attack on the ACA may be nearing the finish line. The U.S. Supreme Court has once again agreed to determine the fate of the ACA in California et al. v. Texas, et al. (19-840). Oral argument is planned for November, with a decision likely in early 2021.

Congress passed the ACA in 2010 to provide "near-universal" health coverage and "to lower health care premiums" through the "creation of effective health care markets." Among other requirements, the law (also known as Obamacare) mandated Americans to obtain health insurance. This requirement to "maintain minimum essential" health care insurance became known as the individual mandate. Those Americans who freely chose to ignore the requirement were subject to a tax penalty.

In 2017, Trump urged his fellow Republicans to repeal the ACA, which they failed to do on numerous occasions. Although they offered no plan to replace it, they switched tactics. They passed the Tax Cuts and Jobs Act through the budget reconciliation process, which limits congressional action to fiscal matters. Among other things, Congress reduced the shared responsibility tax to zero, and thus the tax penalty for not having insurance was eliminated.

In National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), the Supreme Court held, in a splintered 5-4 decision, that the individual mandate of the ACA was constitutional. Chief Justice John Roberts, writing for the majority, reasoned that the mandate was based on Congress' power to tax, whereas the other members in the majority would have sustained the mandate under the power to regulate commerce (Art. I, Section 8, Cl. 3) or the necessary and proper clause (Art. I, Section 8, Cl. 18).

But Republican opponents, as well as the Department of Justice, opened a new line of attack based on the new tax law and its zeroing out of the tax penalty. They argued without the tax, which was "essential" to the law, the constitutional foundation to the ACA was eliminated.

In Texas v. United States, 340 F.Supp. 3d 579 (N.D. Tex. 2018), the district court agreed that without the mandate, the ACA could not constitutionally survive and that the law should be struck down. The 5th U.S. Circuit Court of Appeals agreed, 945 F.3d 355 (5th Cir. 2019), but it sidestepped the critical question of whether the elimination of the mandate could be severed, which would leave the rest of the law in place.

The broad question now before the court is whether the elimination of the tax penalty by the new tax law necessitates the dismantling of the entire ACA on the theory that the mandate is inseverable from the rest of the law. California argues that the mandate can be severed and that the suit is simply a "transparent attempt to use the courts to impose a sweeping policy change that the elected branches have consistently rejected." Texas and the DOJ disagree that severance is possible.

The core idea of severability is that a court should generally endeavor to save the valid parts of a "defective law," unless the legislature would have intended otherwise. This presumption in favor of severability, which minimizes conflicts with the legislature, reflects the consideration that the courts should generally respect the handiwork of the legislature. In Sebelius, Chief Justice Roberts generally endorsed this policy when he observed: "We are confident that Congress would have wanted to preserve the rest of the Act (ACA)." He observed that severability is "a scalpel rather than a bulldozer."

The absence of a severability clause in legislation is not unusual given the presumption in favor of constitutionality. Nothing in the precedent, text, or the legislative history to the ACA or Tax Cuts and Jobs Act supports the view that Congress would prefer sweeping the entire ACA, including such popular features as the protection of preexisting conditions, into the legal dustbin. It would also ignore published reports that the health care markets have by-and-large remained stable notwithstanding the elimination of the tax penalty in 2017.

Invalidating the ACA after its being in effect for 10 years would arguably mark a significant incursion by the judiciary into the traditional role of Congress. It would also disrupt the health care markets and deprive tens of millions of Americans of health insurance during a global pandemic.

The doctrine of severability can be traced back to Marbury v. Madison, which held that one part of the 1789 Judiciary Act was unconstitutional. The rest of the law could stand. More recently, the Supreme Court applied severability in two cases: Seila Law LLC v. Consumer Financial Protection Bureau, 2020 DJDAR 6423 (June 29, 2020), and Barr v. American Association of Political Consultants, 2020 DJDAR 6902 (July 6, 2020).

In Seila, Chief Justice Roberts provided the following thoughts on "our settled severability doctrine." He reasoned: "We try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact ... We will presume Congress did not intend the validity of the statute in question to depend on the constitutionally offensive provision ... unless there is strong evidence that Congress intended otherwise."

For those inclined to read the legal tea leaves, which is admittedly risky, the Selia and Barr cases may bode well for the survival of the ACA. Based on past experiences, Trump will not have provided his comprehensive health plan by the election in November. The public may instead get some photo op health-care executive orders. 