The Trump administration filed a brief in the Supreme Court late Thursday night claiming that the “entire [Affordable Care Act] must fall” in the middle of a pandemic that has killed more than 120,000 people in the United States and sickened more than 2 million.
If the administration succeeds in its effort to kill Obamacare, approximately 23 million Americans will lose health coverage — and that number is likely to grow as the economic downturn triggered by the coronavirus pandemic pushes more and more Americans out of work.
The plaintiffs in this case include a bloc of red states and two individuals. The United States is actually the defendant in this lawsuit, but the Trump administration refused to defend the Affordable Care Act and instead cast its lot with the plaintiffs. The Court plans to hear this case in the fall.
This case, which is now known as California v. Texas, involves Congress’s decision to repeal Obamacare’s individual mandate. As originally enacted, the Affordable Care Act requires most Americans to either obtain health insurance or pay higher taxes. The tax law President Trump signed in 2017 reduces the amount of that tax to zero.
Because the Supreme Court upheld the fully functional mandate as a valid exercise of Congress’s power to tax in 2012, the Texas plaintiffs argue that the zeroed-out version of the mandate is unconstitutional — on the theory that something cannot be a valid tax if it raises no money at all. They also claim that the entire Affordable Care Act must fall if the deactivated mandate is unconstitutional.
This claim that Obamacare must be repealed by judicial decree is widely viewed as ridiculous even by conservative legal experts who backed prior efforts to convince the Supreme Court to gut Obamacare.
Jonathan Adler, a leading proponent for an earlier lawsuit seeking to undercut the Affordable Care Act, labeled many of the anti-Obamacare arguments in Texas “implausible,” “hard to justify,” and “surprisingly weak.” Yuval Levin, a prominent conservative policy wonk, wrote in the National Review that the lawsuit “doesn’t even merit being called silly. It’s ridiculous.”
How we got to this point
As noted above, the Affordable Care Act originally required most Americans to either carry insurance or pay higher taxes. The Supreme Court famously upheld this provision, known as the “individual mandate,” as a valid exercise of Congress’s power to levy taxes in NFIB v. Sebelius (2012).
Congressional Republicans spent much of 2017 debating various plans to repeal Obamacare, but they ultimately did not have the votes for a broad repeal. They did, however, manage to repeal the individual mandate in the 2017 tax legislation. Though the United States Code still contains Obamacare’s language requiring individuals to pay a tax penalty if they do not have insurance, the amount of that penalty is now zero dollars.
The Texas plaintiffs and the Trump administration claim that this shell of a mandate is unconstitutional. The fully functional mandate was constitutional because it is a tax, but a zero dollar tax is no tax at all. So the Texas plaintiffs argue that it must be unconstitutional.
That’s not a frivolous argument. But the zeroed mandate already does nothing. So who cares if a provision of the law that literally does nothing at all is constitutional or not?
To achieve anything meaningful, Obamacare’s opponents don’t just need to convince the Supreme Court that a nothingburger mandate is unconstitutional. They also have to get a majority of the justices to embrace two other arguments: a claim that the Texas plaintiffs may challenge a legal provision that does nothing and a claim that the entire Affordable Care Act must fall.
No federal court should be allowed to hear this case
Before anyone is allowed to challenge a law in federal court, they must show that they’ve been injured in some way by that law — a requirement known as “standing.” That alone should be enough to doom the Texas litigation. Because the plaintiffs challenge a provision that does nothing at all, no one is injured by it. So no one has standing.
The plaintiffs argue they can get around this problem by pointing to the way Obamacare’s language laying out the individual mandate is structured. The first subsection of that language says that most individuals “shall” carry health insurance; the second says that people who don’t buy insurance pay a tax penalty; the third sets the amount of that penalty — which, again, is now zero dollars.
Although the penalty for not buying insurance is nothing, the plaintiffs claim that individuals are still bound by the language saying that they “shall” carry insurance — and therefore are injured by a law that commands them to do something they don’t want to do.
The biggest problem with this argument is that it runs counter to the Supreme Court’s decision in NFIB, the decision upholding the fully functional individual mandate. As Chief Justice Roberts explained:
Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law.
Thus, the Supreme Court explicitly rejected the Texas plaintiffs’ argument that they are bound by a command to buy insurance. There are no “negative legal consequences to not buying health insurance” except having to pay a tax penalty. Anyone who pays that penalty has “fully complied with the law.” And the amount of that penalty, in case this isn’t already clear, is now zero dollars.
Notably, the Trump administration does not even attempt to defend the plaintiffs’ standing arguments. Instead, its brief argues that these plaintiffs may challenge the zeroed-out mandate because they are injured by some other provision of Obamacare — “namely, various provisions regulating health-insurance plans that limit the range and terms of plans the individual plaintiffs may obtain and that increase their costs of obtaining coverage.”
But that’s simply not how standing works. To bring a federal lawsuit alleging that a particular provision of law is unconstitutional, a plaintiff must be able to show that they are injured by that specific provision of law. Because these plaintiffs only claim that one provision of Obamacare — the ex-mandate — is unconstitutional, they must show that they’ve been injured by that provision.
The “severability” problem
But let’s assume, for a moment, that these plaintiffs have the standing to challenge a law that does nothing. Let’s also assume that the ex-mandate is unconstitutional. What then?
When a court strikes down one provision of a broader statute, it often must ask whether other provisions of the statute must fall along with it. This inquiry is called “severability,” and it’s typically a speculative inquiry. Courts ask which hypothetical law Congress would have enacted if it had known that a particular provision was invalid.
There’s no need to speculate in Texas, however, because Congress already answered this question. Lawmakers spent most of 2017 debating how much of the Affordable Care Act to repeal. Ultimately, they only had the votes to repeal one provision, the individual mandate, while leaving the rest of the law intact. So we know that Congress would have enacted a law that eliminated the individual mandate and kept the rest of the law because Congress enacted a law that eliminated the individual mandate and kept the rest of the law.
This conclusion is bolstered by the Supreme Court’s decision in Murphy v. NCAA (2018), which held that courts should apply a very strong presumption against striking additional provisions of a law when one provision is declared unconstitutional. “In order for other ... provisions to fall,” Justice Samuel Alito wrote for the Court in Murphy, “it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.’”
The question facing the Supreme Court now, in other words, is whether the Court will apply its ordinary standing rules as well as the rule it announced in Murphy, in a politically charged case involving a law that Republicans hate above all others. Roberts has twice signaled that he is not willing to embrace dubious legal claims in order to undercut Obamacare, so the Texas plaintiffs and the Trump administration are unlikely to prevail.
But if Trump gets to fill another Supreme Court seat, all bets are off.