Democrats opposed the confirmation of Justice Amy Coney Barrett on the grounds that she will be a vote to strike down the entire Affordable Care Act including its protections for those with pre-existing conditions in a case set to be argued today, November 10th: California v. Texas.
Can you identify which of the following statements about the Affordable Care Act litigation is false?
A. The most consequential question in California v. Texas is whether the individual mandate can be severed from the rest of the Affordable Care Act.
B. There is near unanimous agreement among liberal and conservative legal experts that the Supreme Court will not eliminate the entire Affordable Care Act or protections for Americans with pre-existing conditions.
C. The confirmation of Justice Amy Coney Barrett guarantees that the Supreme Court will dismantle the Affordable Care Act.
Let’s take these statements one at a time:
A. Truth! When Congress amended the Affordable Care Act in 2017 to zero out the individual mandate’s tax penalty it made no changes to the rest of the statute. A majority of the Supreme Court justices agree that there is a strong presumption in favor of saving as much of a statute as possible. Thus, even if the Supreme Court strikes down the individual mandate because it can no longer be upheld under Congress’s Taxing Power, the Court is likely to uphold the rest of the Affordable Care Act, especially where, as here, the 2017 Congress clearly thought the rest of the ACA could work without an enforceable mandate.
B. Truth! Legal experts have recognized that California v. Texas presents the weakest of numerous challenges the Supreme Court has heard regarding the Affordable Care Act–at least when it comes to striking down the entire ACA. Further, not a single federal court of appeals judge has voted to strike down the entire ACA in the course of the litigation.
C. Lie! The Supreme Court is unlikely to strike down the entire Affordable Care Act. Indeed, legal commentators predict an 8-1 or 7-2 majority upholding most of that statute, including pre-existing conditions coverage. At her confirmation hearings, Justice Barrett included herself within the majority of Supreme Court justices who believe that the Supreme Court ordinarily invalidates only the unconstitutional portion of a statute.Further, Chief Justice Roberts authored the opinion announcing that the “essential feature” of a tax is that it raises some revenue. There are thus likely 5 votes, before the confirmation of Justice Amy Coney Barrett, to find the individual mandate suspect under the Taxing Power. And even if the Supreme Court were to find that the individual mandate cannot be upheld under Congress’s Taxing Power, the rest of the Affordable Care Act will likely remain in place.
Bottom line: There is a near-zero chance that the Supreme Court will strike down the entire Affordable Care Act. Under well-established Supreme Court doctrine, the Court ordinarily strikes down only the unconstitutional portions of a statute. Thus, even if the individual mandate is unconstitutional, the Court is unlikely to strike down the rest of the Affordable Care Act. Claims to the contrary are nothing more than scare tactics.