Last week, 75 million people voted for the candidate promising to preserve the Affordable Care Act, four million more than his opponent. But Tuesday, the Supreme Court will hear a case to kill it.
It’s the third such case, in fact, brought by conservative activists hoping to win over five justices after failing to win over the American people.
On one level, what will happen in that case, California v. Texas, depends on key principles of legal philosophy and constitutional interpretation. On another, though, it depends on what kinds of judges the Supreme Court’s conservative supermajority want to be: the principled kind, or the activist kind.
First, contrary to the hyperbolic rhetoric during Justice Amy Coney Barrett’s confirmation hearings and the election, the ACA as a whole is not being reviewed by the court. And even if the court rules against the provision that is at issue, it probably won’t (though it could) throw out the entire law, as we’ll see in a minute.
I’m not suggesting you take a deep breath and relax—only that it’s worth taking a closer look to see what is and is not on the chopping block.
In 2012, the Supreme Court was widely expected to overturn a key provision of the ACA, called the individual mandate, which requires everyone to buy health insurance, and to pay a penalty on their tax returns if they don’t.
As an ironic aside, the individual mandate exists because of conservative economics—it was originally a Republican idea. If you want to (a) keep private health insurance but (b) make sure that high-risk people—people with pre-existing conditions, for example—are guaranteed coverage, you have to make sure that healthy, young people also buy insurance. Otherwise the insurance companies go broke. If there were national health insurance—either a “public option” as President-elect Biden has proposed, or Medicare for All, as Bernie Sanders did—you wouldn’t need it.
Whatever its source, though, the individual mandate was immediately controversial. Unlike states, the federal government has limited powers, enumerated in the Constitution. And compelling people to buy something they don’t want to buy was a stretch of those powers.
In the 2012 case, NFIB v. Sebelius, the court split 5-4, with Chief Justice John Roberts writing an opinion that conservatives half-liked and liberals half-liked. First, Chief Justice Roberts found that the individual mandate was not within the federal government’s power under the commerce clause, the most obvious constitutional peg for it. Conservatives loved that.
But then, to the surprise of pretty much everybody, Chief Justice Roberts said that the mandate was constitutional because it was effectively a tax. The most obvious reading of the mandate, the court held, was that it was a command that everyone buy insurance. But another way of reading it would be that it says “either buy insurance or pay this additional tax, your choice.” And that is constitutional.
When the Republicans controlled both houses of Congress in 2017, they famously failed to repeal Obamacare. But they did manage to reduce the individual mandate “tax” to $0.
Which leads to a Zen koan of a constitutional question: Is something still a tax if no one has to pay it?
That, believe it or not, is what tomorrow’s case is all about.
The conventional wisdom is that Chief Justice Roberts’ strained reading of the ACA will not survive. After all, Justice Barrett once wrote that he stretched the law “beyond its plausible meaning to save the statute.” And she’d be the fifth vote to overturn it.
But not so fast.
Even Chief Justice Roberts agreed that he stretched the meaning of the law. He said so himself in 2012. But, and here we get into the details, he was acting according to a principle of constitutional interpretation that “if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”
So, yes, Roberts continued, “The most straightforward reading of the mandate is that it commands individuals to purchase insurance... But… the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one.”
In other words, it’s not that the “tax” reading makes the most sense. It’s that it makes enough sense not to strike down a law that Congress has passed, and has chosen many times not to overturn.
That logic still holds true today—maybe even more so, given the failures of repeal efforts. Yes, the tax amount is, for now, $0. But Congress has lots of reasons why it increases and decreases taxes; that doesn’t mean that when they go down, even to nothing, that they don’t exist. The law, the individual mandate, and the penalty “tax” are all still on the books.
Indeed, it was Justice Kavanaugh, then Judge Kavanaugh, who wrote in a different challenge to Obamacare that Congress could pass a “minor tweak” to the language of the ACA to make clear that the “the taxpayer has a lawful choice either to maintain health insurance or make the payment to the IRS required by Section 5000A(a)-(c).”
Now, Congress has not passed that tweak. But Chief Justice Roberts’ interpretation of the existing language has the same effect. And it works just as well whether the payment required is $10,000 or $0.
Of course, as in many Supreme Court cases, these legal details are not really what’s going on. Big business hates the ACA. Conservatives and libertarians hate the ACA. And Donald Trump promised to nominate justices who would overturn it. He has placed three on the court. Legal reasoning notwithstanding, those are long odds.
Again, not so fast. Because there’s yet another reason I think most of the ACA will survive: the principle of “severability.”
This doctrine holds that courts should sever an unconstitutional part of a law rather than overturn the whole thing. Like a doctor on a battlefield, they amputate the limb to save the patient.
Now, in this case, removing the individual mandate may well begin a so-called “death spiral” for the ACA, because of the economic consequences noted above: if healthy people don’t buy insurance, the system collapses. But Congress can fix that problem if it wants to, and on paper at least, the law holds together without it. You can rip out the individual mandate and leave the rest of the law intact.
This is an argument that several of the court’s six-person conservative supermajority should like. Obviously, Obamacare is controversial, one of the top handful of issues in the recent presidential campaign. And everyone knows it was front-and-center at Justice Barrett’s hearings. For the court to invalidate the entire law, when there is a less invasive option available, would risk what’s left of its legitimacy and insert it into the middle of a partisan political battle. That is exactly the kind of mess that judicial conservatives want to avoid.
So, in the end, the fate of the ACA may come down to a fundamental question facing the court’s six conservative justices: what kind of judges they want to be. If they want to execute a conservative political agenda, here is a golden opportunity to do just that. But if they choose to honor the principles of judging that have animated both conservative and progressive justices over the last two centuries, most of the ACA should survive this challenge, even if part of it does not.
That decision, and the fates of 20 million of people who depend on the ACA to stay alive, will be up to them.