If you thought that Obamacare had already been to the Supreme Court, you are correct. The Court ruled in 2012 that the massive legislative package was legal because, despite direct statements to the contrary by legislators, it was a tax. Then Congress reduced the penalty for failing to obtain health insurance from $695 to $0 in 2017. Texas and others filed a new lawsuit against the Affordable Care Act in response, arguing that the mandate is merely a command to buy health insurance and is therefore unconstitutional without a penalty for noncompliance.
Without the mandate in place, they contended the remaining provisions of the ACA are also invalid. If a majority of the Supreme Court agrees with the argument presented by Texas, the healthcare exchanges set up by the ACA, as well as the rest of the law, will be thrown out and declared unconstitutional. That proposition is a “big if” presently.
Article III Standing
Procedural questions may keep the Supreme Court from ever reaching a conclusion on the question of the ACA’s constitutionality. That question took up a considerable portion of the hearing, which ran quite long for a Supreme Court case, at two hours. The issue is standing – does Texas or the individuals who brought suit have “standing” to sue.
A plaintiff must have suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent,” as opposed to “conjectural or hypothetical,” to have the standing to sue. Do these plaintiffs? If there is no dollar penalty, is there an injury? What about the bookkeeping requirements Texas has to undertake for compliance – are they burdensome enough to meet the damage requirement?
If a sufficient number of justices agree that one or more of the plaintiffs satisfy the standing requirements, they still have another challenge to striking the law down – severability. If the zero-dollar penalty is not constitutional, does that mean the whole ACA must be stricken down? That’s another hurdle Texas must clear to have the law declared unconstitutional. Legislators will sometimes include severability clauses in bills that instruct courts that if one part of the law is stricken down, the whole thing must be tossed into the dustbin. Congress didn’t include such language with the law here, so the justices must decide if the law is severable.
Justice Alito described severability with the help of an airplane. He said if a plane cannot fly without a certain part, then that would be inseverable. Since the ACA has survived without the tax, he suggests that means it is severable by nature. Perhaps a better analogy would be this – if the passengers were told a certain part on the plane was not functioning, would they still have boarded the flight? Had the provision been absent, would the legislation have passed into law in the first place? That’s the question for the Justices on severability.
Wise jurists avoid politically charged cases and controversies when possible. With that in mind, the multiple procedural hurdles to an outright judgment on the merits suggest we will not get one. The Court’s composition has changed quite a bit since 2012, however, and the current Justices may have something to say about Obamacare we haven’t heard yet.
Read more from Scott D. Cosenza.