The Affordable Care Act is coming before the Supreme Court in November — and this time, with no Justice Ruth Bader Ginsburg there to protect the law.
Ginsburg, who was appointed to the Court by President Bill Clinton in 1993 and served until her death on Friday, voted to uphold the law in 2012. Along with the three other liberal justices and Chief Justice John Roberts, she saved Obamacare then from a legal challenge that would have invalidated the law entirely.
But now another challenge, a sequel of sorts to that 2012 case, will be heard by a Court without Ginsburg on it. A consortium of Republican-led states have sued again to overturn the ACA completely. In 2012, Roberts sided with the liberal justices including Ginsburg and ruled that the law’s individual mandate penalty could stand because it was a legitimate use of Congress’s taxing power. Now, because a GOP-controlled Congress repealed the penalty in their 2017 tax law, the Republican states argue Roberts’s rationale from 2012 no longer applies and the ACA must fall.
It was assumed in Washington, up until Friday, that Obamacare would probably be safe because the same five votes that preserved it in 2012 were still on the bench. But now, with Ginsburg’s death, that is no longer true. There is a lot of uncertainty about what happens next, but the bottom line is this: The ACA is much more at risk of being overturned today than it was the day before.
“It’s a much more significant possibility than it was,” Nicholas Bagley, a University of Michigan law professor who worked in the Obama administration, told me. “I’m much more worried about the ACA than I was two hours ago.”
The consequences of the Court overturning Obamacare would be severe: The Medicaid expansion and the insurance marketplaces that cover 25 million people would be nullified, the protections for people with preexisting conditions would be voided. Overnight, the US health care system would be thrown into chaos.
However, that worst-case scenario is not a given even after Ginsburg’s passing. There are matters of court procedure and the substance of the case that could still save the ACA.
First, the procedure: Senate Majority Leader Mitch McConnell is promising to hold a vote on President Donald Trump’s nominee to replace Ginsburg, but he hasn’t set a timeline for that vote. Bagley told me that convention dictates justices should not rule on cases they did not hear the oral arguments for. The Senate holding its hearings and voting on a Court nominee before November 10, the scheduled date for the ACA arguments, seems unlikely if not impossible.
If a new justice won’t be confirmed before oral arguments, the current Court has two choices. One, they could choose to postpone oral arguments. But that would require five votes, and such a consensus could be difficult to come by on a closely divided Court, with nobody certain how the incoming justice will rule.
The other option is to hear the case as scheduled and have eight justices decide the outcome. If there was a 4-4 tie, the decision of the lower courts would hold. In this case, that means a federal district court judge would be asked to decide what other parts of the law must also fall if the mandate is overturned. Those could include the law’s rules banning insurers from denying people coverage or charging them higher premiums because of their medical history.
So the litigation would, in a certain sense, start over, and the same case would likely end up back before the Supreme Court in another year or two.
However, some of the legal experts I spoke with believe the lawsuit will still be heard in November and Obamacare ultimately upheld even without Ginsburg on the bench.
Why? As Bagley put it: “This lawsuit is profoundly dumb, and that matters a lot.”
That is not a partisan position either. Jonathan Adler, a libertarian law professor at Case Western Reserve University, told me in 2018 he thought the Republican states’ argument was “absurd.”
The case turns on the complicated legal concept of “severability”: If one provision in a law is invalidated by a court, can the rest of it stand without it? Texas is arguing that the individual mandate is so central to Obamacare that if it is unconstitutional, then the rest of the law is too.
Courts usually decide that question by looking at Congress’s intent — and that’s where the conservative case falls apart.
It is actually quite simple, legal scholars say: Congress passed a law, the tax legislation, repealing the individual mandate and leaving the insurance protections in place. So, clearly, Congress intended in the tax bill to eliminate the mandate penalty while keeping the ACA’s insurance reforms. That is exactly what the tax law they just passed does.
Adler told me Friday night that he thought there were still five or six votes on the Supreme Court who would rule that even if the mandate is now unconstitutional, the rest of the law is severable from it and should therefore be upheld. Justice Brett Kavanaugh is believed to be sympathetic to that argument, based on some recent decisions, though that remains to be seen.
Nevertheless, Adler said, a new vacancy on the Supreme Court “shouldn’t affect the outcome” of the ACA case.
That could very well end up being true. Legal experts have long been dubious about the merits of the lawsuit. But right now, in the hours after the world learned Ginsburg had died, the future looks a little less certain.