For those who’ve grown weary of wondering whether the U.S. Supreme Court will strike down or uphold the Affordable Care Act (ACA), two legal scholars offered a hopeful assessment this week: Several of the justices appear to share the feeling.
Recent oral arguments in the latest challenge to the law indicate that some of the justices want to resolve questions over the law’s fundamental constitutionality once and for all, leaving Congress to hash out whether to eliminate it, change it, or leave it alone, the scholars said on Nov. 17 at the AAMC's annual meeting, Learn Serve Lead 2020: The Virtual Experience.
“They want to resolve this and move on,” Beth Brinkmann, JD, a partner at Covington & Burling LLP, said during a panel discussion entitled “The Courts and the ACA: What's Next?”
Yale Law School professor Abbe Gluck, JD, agreed, noting that the current case, California v. Texas, marks at least the seventh time the ACA has come before the court. “The Affordable Care Act is the most challenged statute in modern American history,” said Gluck, faculty director at Yale’s Solomon Center for Health Law and Policy.
“Is there a doctrine of judicial exhaustion that might come into play?” moderator Frank Trinity, JD, AAMC's chief legal officer, asked playfully but on point.
Brinkmann and Gluck said questions and comments by several of the justices during oral arguments on Nov. 10 indicated that the court might be “impatient with” and “a little tired” of dealing with challenges to invalidate the law, but that the justices see an opportunity to settle questions that might forestall further assaults on the law’s existence.
They said the court appears poised to uphold the ACA’s constitutionality even if it strikes down the mandate that everyone must have health insurance, which has long been considered a centerpiece of the measure — a prognosis, they said, that illustrates some evolution in legal and political thinking about the law since it passed in 2010.
Can the law survive with no mandate?
The court might have thought the constitutional matter was settled in 2012, when it ruled that the penalty for violating the mandate was a tax — and thus constitutional because of Congress’ taxing authority. Other ACA rulings by the court have focused on more specific matters, such as exempting religious organizations from a requirement that employer-provided health insurance include birth control with no co-pays and requiring the federal government to pay insurance companies money they were promised under the law.
The current suit, brought by Republican officials in 18 states, contends that the ACA’s mandate for all Americans to obtain insurance became unconstitutional after Congress reduced the penalty for not having such insurance to zero. By eliminating the mandate, they say, the entire law collapses like a Jenga tower. Several justices pushed back, referring to the concept of “severability” — that if a court strikes down one part of a law, the rest of the law can remain valid.
“It's hard for you to argue that Congress intended the entire act to fall if the mandate was struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Chief Justice John Roberts told the lawyer for Texas, the lead plaintiff. “I think, frankly, that they wanted the court to do that, but that's not our job.”
Notably, three traditionally conservative justices were among those voicing such doubts about the argument: Roberts, Brett Kavanaugh, and Samuel Alito. Observers assume that the three traditionally liberal justices — Sonia Sotomayor, Elena Kagan, and Stephen Breyer — will vote to uphold the ACA. Five votes are needed for a majority.
The justices’ legal view might be influenced by real-world experience, Gluck said. She noted that to the surprise of many of its supporters, the law has operated without the mandate for years. Last year, 8.5 million people were covered by ACA-funded insurance plans.
“The Affordable Care Act has a lot of flexible financial levers that keep it stable even without the mandate,” Gluck said.
Alito alluded during oral arguments to the law’s surprising survival, recalling that at the time of the 2012 Supreme Court challenge, lawyers argued that “the individual mandate was like a part in an airplane that was essential to keep the plane flying, so that if that part was taken out, the plane would crash. But now the part has been taken out and the plane has not crashed.”
Does the law hurt states?
Another key issue is whether the justices think the plaintiffs that brought the lawsuit even have a right to do so. To have standing to bring a lawsuit against a law, a person or entity has to show that the law harms them, such as by costing them money.
“You cannot just go sue in federal court because you don’t like a law,” said Brinkmann, co-chair of the Appellate and Supreme Court Litigation Group at Covington & Burling and former U.S. deputy assistant attorney general. “You have to have an injury.”
During the Supreme Court oral arguments, several justices quizzed lawyers for both sides about whether states suffer harm from the law, because it’s unclear what the law costs them. Previously, the U.S. Court of Appeals for the 5th Circuit, which decided the case before it was appealed to the Supreme Court, ruled that state agencies have to spend resources to verify which state employees have the minimum coverage that the law requires. In addition, there are several individual plaintiffs who the mandate requires to spend money on insurance, the circuit court said.
The focus by some Supreme Court justices on legal standing was intriguing, Brinkmann and Gluck said, but they think it’s unlikely that the court will reject the lawsuit for that reason.
“If the court tossed the case on the grounds of standing, they would probably find themselves facing the same case brought by people or entities with a stronger argument that they’ve been harmed by the law,” Brinkmann said.
That leaves the Supreme Court to rule on the merits of the question at the core of the case: Is the individual mandate invalid because Congress lowered the tax penalty to zero? On that matter, the oral arguments presented less insight into the justices' thinking.
The country should know the answer by next June or slightly sooner, Brinkmann said.
Still, Gluck said, “The court hasn't seen the last of the Affordable Care Act. But have we seen the last existential challenge?”
She paused and said, “Yeah.”