The eyes of the American populace, still groggily peeled from the Election Day hangover, move this week toward the judicial branch as the fourth challenge to Obamacare since the law’s inception a decade ago is set to be heard in the U.S. Supreme Court (SCOTUS).
The plaintiffs — led by Texas Attorney General Ken Paxton — cite Chief Justice John Roberts’ 2012 NFIB v. Sebelius’ construal of the law’s penalty as a “tax” under the Constitution’s Commerce Clause. They argue that without an actual monetary fine, no tax exists to hold the law up constitutionally according to Roberts’ line of reasoning.
In addition, plaintiffs argue the entirety of the law is not severable from — i.e. cannot stand without — the mandate. The rest of the law includes the healthcare exchanges; the Medicaid expansion, which Texas has to-date declined to implement; and insurance subsidies.
Plaintiffs have pointed to Obama administration arguments back when the law was written and passed, which defended the mandate by saying the pre-existing condition protections were dependent upon the mandate’s requirement that healthy individuals join the exchange to spread out the cost burden.
One potential barrier to the severability argument is that Congress, with the opportunity to repeal the entire law, could only muster the zeroed-out penalty. Multiple attempts to repeal the law entirely, or just partially, failed despite Republicans holding both houses of Congress and the White House.
Typically, when presented with a severability question, courts must postulate what Congress would have intended.
In an amicus brief filed with SCOTUS only addressing severability and not the mandate’s constitutionality, law professors Jonathan Adler of Case Western Reserve University, Nicholas Bagley of the University of Michigan, Abbe Gluck of Yale, and Ilya Somin of George Mason University argued, “[This case] presents no need for any of these difficult inquiries because Congress itself — not a court — eliminated enforcement of the provision in question and left the rest of the statute standing.”
“A court’s insistence on nonetheless substituting its own judgment for that of Congress — as the district court did here — usurps congressional power, turns the court into a legislator, and violates black-letter principles of severability,” they concluded.
An amicus brief filed by the Montana and Ohio State attorneys general, both Republicans, argues that the mandate is unconstitutional, the rest of the law is severable, and that the use of severability determinations should be curtailed.
The Texas-led coalition includes numerous other red states as well as two individuals represented by the Texas Public Policy Foundation (TPPF).
In opposition, supporting the law through amicus briefs, is a coalition of blue states led by California and its Attorney General Xavier Becerra. California argues not only that the zeroed-out penalty doesn’t negate the court’s 2012 ruling, but that the rest of the law is severable from it.
In December of last year, the U.S. Fifth Circuit Court of Appeals sided with Texas declaring the law invalid after the fine was zeroed out. The Fifth Circuit, however, did not definitively rule on the severability aspect.
California appealed for SCOTUS to hear the case before the end of the last term and before the election, but was denied. The court agreed to hear the case but set the oral argument date for a week after Election Day.
The Trump administration, while having been nominally identified as defendants in the suit, is supportive of the plaintiffs’ efforts.
But before the plaintiffs can have their statutory arguments considered, they must prove standing before the court — or that the plaintiffs faced injury from the challenged law.
Texas’ solicitor general, Kyle Hawkins, will be arguing the plaintiff’s case before the court.
This will be the first marquee case heard since the death of former Justice Ruth Bader Ginsberg and confirmation of her replacement, Amy Coney Barrett.
The court’s makeup is now six to three in favor of Republican appointees.
In the decision, the court could deny standing outright; affirm the Fifth Circuit’s opinion that the mandate is now unconstitutional but preserve the rest of the law under “severability;” nix the mandate and strike down certain other provisions of the law but not wholesale; or strike down the entire law under the pretense of inseverability from the mandate.
The case will be heard at 10 a.m. EST on Tuesday and the court’s opinion will likely not come for multiple months.
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