Will Trump-Appointed Justices Strike Down the Affordable Care Act?

On Nov. 10, the Supreme Court heard yet another challenge to the Affordable Care Act (ACA) in the case of California v. Texas. 

Despite repeated attempts by conservatives to gut the law, the ACA has expanded health insurance coverage for more than 20 million Americans. Among other provisions, the ACA guarantees that Americans can get health insurance coverage despite pre-existing conditions, bars insurers from charging individuals higher rates based on their health status, and prohibits discrimination in health care based on race, sex, age or disability. The ACA also expanded coverage for preventive services, including contraceptive care, and ensured coverage for maternity care.

Access to women’s health services has been especially important for Black women, who face a heightened risk of maternal mortality. Moreover, in states that adopted the ACA’s Medicaid expansion provision, more people who live at or near the poverty line are able to access needed health care.  

Despite these benefits that Americans have relied on for almost a decade, the Trump administration is seeking to have the Supreme Court toss out the entire ACA in the midst of the coronavirus pandemic. 

The Affordable Care Act’s Multiple Days in Court

California v. Texas is the ACA’s third appearance before the Supreme Court.

In 2012, in a 5-4 decision, Chief Justice Roberts joined with the liberal wing of the Supreme Court to uphold the ACA against constitutional challenge. The ACA contains a minimum coverage requirement, which provides for an “individual mandate” to buy health insurance. The individual mandate requires most Americans to purchase a minimum level of health insurance, or else pay a tax penalty. Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, concluded that the ACA’s individual mandate and tax penalty scheme is a constitutionally valid exercise of Congress’s power to tax and spend for the general welfare.

In 2015, another attempt to gut ACA failed when the Supreme Court again upheld the ACA’s statutory structure for broadening access to health care. 

When attacks on the ACA at the Supreme Court floundered, congressional Republicans tried unsuccessfully to repeal all or part of the ACA several times.

Finally, in December 2017, Congress passed and President Trump signed into law the Tax Cuts and Jobs Act, which—among other tax cuts for the wealthy—reduced the ACA’s tax penalty for failing to purchase health insurance to zero.

After Congress zeroed out the tax penalty, Texas and other states led by Republican attorneys general and governors filed a lawsuit in federal district court in Texas seeking to invalidate the entire ACA. California’s Attorney General Xavier Bacerra, along with a team of twenty other Democratic attorneys general, defended the ACA in the federal courts.  

The federal district court in Texas held that the 2017 law’s elimination of the tax penalty converted the ACA’s individual mandate into a “standalone command” to purchase health insurance, which Congress lacks the constitutional power to order. Even more controversially, the district court, in an opinion by Judge Reed O’Connor, concluded that the individual mandate could not be “severed” from the remainder of the ACA’s many legal protections and, therefore, the entire ACA must be struck down. 

Among other legal issues, the Supreme Court will decide the crucial legal issue of severability—whether the individual mandate should be invalidated while still preserving the rest of the ACA, including protecting 135 million Americans with pre-existing conditions and preserving Medicaid expansion. 

The legal principle of severability is well-established. The severability principle directs courts to leave the rest of a statute standing even if part of the statute is found to be unconstitutional. Even conservative legal scholars who argued against the constitutionality of the ACA criticized Judge Reed O’Connor’s conclusion that the individual mandate was not severable, emphasizing that Judge O’Connor’s opinion “is an exercise of raw judicial power, unmoored from the relevant doctrines concerning when judges may strike down a whole law because of a single alleged legal infirmity buried within.” 

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The concerns about the fate of the ACA have reached a fever pitch with the passing of Justice Ruth Bader Ginsburg. In the waning weeks before the election, the Republican-controlled Senate rushed through President Trump’s third appointment of a Justice to the Supreme Court, Justice Amy Coney Barrett. Justice Barrett is a longstanding critic of the ACA and opponent of reproductive rights. With Justice Barrett now on the Court, there are potentially five votes to overturn the entire ACA.  

What Did the Justices Signal During California v. Texas Oral Arguments?

During oral arguments on Tuesday, however, Chief Justice Roberts and Justice Kavanaugh indicated disagreement with Republican arguments in favor of invalidating the entire ACA on the ground that the individual mandate is not severable (although the argument that the individual mandate is now unconstitutional is also legally unsound). 

In particular, Justice Kavanaugh stated during oral arguments that, even if he agreed that the individual mandate must be stricken, he likely would not vote to strike down the entire ACA.

Justice Kavanaugh told lawyers defending the ACA, “I tend to agree with you that it’s a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the act in place.”

Recently, Justice Kavanaugh authored an opinion in a different case explaining severability doctrine generally and noting that there is “a decisive preference for surgical severance rather than wholesale destruction” of a statute. While it is always a gamble to read the tea leaves of oral argument, it appears that the Trump administration may not muster five votes for the Supreme Court to toss out the entire ACA. 

In the course of four years of cruel policy-making on issues ranging from immigration to poverty, the Trump administration’s concerted effort to overturn the ACA during a global pandemic is especially cruel. The pandemic’s impact on public health and the economy has made access to health care coverage more urgent than ever. The ACA prohibited common practices that led to women and girls being denied coverage or charged more based on their health status.

While the ACA helped to mitigate longstanding health disparities, the COVID-19 pandemic has exposed how systemic racism leads to people from racial and ethnic minority groups being at increased risk of getting ill and dying from COVID-19.            

President-Elect Biden could reverse these trends and move the U.S. towards greater health justice. The Biden administration can work to undo the damage wrought by the Trump administration on access to reproductive health care and women’s health care more broadly. If the Democrats take control of the Senate by winning the two run-off races in Georgia, President-Elect Biden could accomplish an even bolder agenda to build on the ACA and directly address health disparities on issues like maternal mortality.

But even without a majority in the Senate, Biden can certainly accomplish many things without Senate approval by executive order or through executive branch agency action.

Elections matter and the 2020 election cycle is not over yet. 

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