Though not unexpected, the death of Justice Ruth Bader Ginsburg — a great lawyer, Supreme Court justice, and human being — on September 18 shocked the nation. Her legal advocacy before her appointment to the Court and her opinions as a justice have had a major impact on American law and society. If President Trump succeeds in appointing a new justice in the waning days of his term, the appointment would have an even greater impact on the law, as it would leave the Court with a solid right-wing majority for years to come. This post will address how her death will affect the court’s consideration of California v. Texas, and the future of the Affordable Care Act (ACA).
The California v. Texas Litigation
In 2018, two individuals and a group of Republican state attorneys general led by Texas sued to invalidate the ACA. They argued that the Supreme Court in NFIB v. Sebelius had held that the ACA’s mandate for people to purchase health insurance was unconstitutional as a command and only constitutional as a tax. When Congress in 2017 reduced the mandate’s penalty to $0, the mandate, the plaintiffs argue, ceased to be a tax and became entirely unconstitutional. By arguing that the mandate was essential to the remainder of the ACA, they claimed that all 1,000 pages of the ACA should be invalidated.
Anticipating that the Department of Justice might refuse to defend the ACA, California, joined by a group of Democratic attorneys general, intervened to protect the law. They were later joined by the U.S. House of Representatives. A Texas District Court judge adopted the plaintiffs’ argument in its entirety and invalidated the ACA. On appeal, the United States Court of Appeals for the Fifth Circuit held that the mandate was indeed unconstitutional, but sent the case back to the District Court judge to determine more specifically which provisions of the ACA were “inseverable” from the mandate and thus should be invalidated with it. The Supreme Court agreed to review that decision, which is awaiting oral argument on November 10.
What Happens Now?
If a new justice is not confirmed by November 10, the oral argument could be heard by an eight-member Court or it could be postponed, although that is unlikely. The case also could be reargued later once a new member is appointed. It may not ultimately matter, however, whether the case is heard by an eight-member Court or a nine-member Court that contains a new Trump appointee. In either event, two Republican appointees would have to join the Court’s three remaining Democratic appointees to reverse the Fifth Circuit’s decision and uphold the ACA in its entirety or all of it but the mandate.
If a majority of the justices vote to affirm the Fifth Circuit decision, or if an eight-member court splits evenly, the mandate would be held unconstitutional and the case would be sent back to District Court to consider if other ACA provisions should be invalidated. Any decision of the District Court could be appealed back to the Fifth Circuit and ultimately possibly heard again by the Supreme Court, leading to more litigation. However, severability is mainly an issue of law; it is unlikely that the Supreme Court would send the case back to District Court with as vague and open-ended a remand as the Fifth Circuit did.
Alternatively, the Court could decide at least 5–3 (or 5–4 or 6–3 if a new justice is appointed in time) that the mandate is unconstitutional and the rest of the ACA is “inseverable” from it and must also be invalidated. This would destroy the ACA and throw our health care system into chaos.
It is also possible that the Court could uphold the ACA generally, but strike down some of its specific provisions that are more closely related to the mandate and were specifically challenged by the plaintiffs. These could include the guaranteed issue and community rating provisions and preexisting condition exclusion ban. The plaintiffs argue that these provisions cannot be severed from the mandate because congressional findings state that the mandate is essential to the operation of these provisions.
There is a decent chance that at least two Republican appointees will join the three Democratic appointees in finding all of the ACA severable from the mandate, thus upholding the ACA. In two opinions this past spring, one written by Chief Justice Roberts and the other by Justice Kavanaugh, the Court found specific provisions of other statutes to be unconstitutional but severed them entirely from the rest of the statutes, which remained valid. In one case, Justice Kavanaugh read the Court’s prior decisions to create a “strong presumption of severability;” in the other Chief Justice Roberts noted the importance of avoiding “a major regulatory disruption” and of using “a scalpel rather than a bulldozer” in curing constitutional defects. Justice Kavanaugh observed that “constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.” In both cases, Chief Justice Roberts and Justices Kavanaugh and Alito favored severability, giving a potential six votes to sustain the ACA.
A Supreme Court decision in California v. Texas is not expected until spring or perhaps early summer. In the meantime, Congress could act to moot the case and preserve the ACA by reimposing a nominal tax or repealing the mandate or the findings on which Texas bases its claim to severability. This seems most likely if Vice President Biden is elected president along with a Democratic Senate and might require ending the Senate filibuster. For the time being, however, the ACA is more at risk than it was just days ago.
