I listened to the Supreme Court hearing on the ACA this morning and my non-expert impression, based on the questions asked by the justices, is that there is probably at least a 5-4 majority to turn down the case, which would preserve the ACA.
I don't want to spend too much time on the substance of the arguments and rather think that more interesting is the question of non-legal factors that might influence the justices.
Legal Points First
First, is the issue of Standing:
- The plaintiffs are arguing that individuals and the States have standing to bring this case because they have been harmed.
- Individuals because they are 'mandated' to buy insurance.
- The states because more people are enrolling for Medicaid which costs the states.
- The defense argues there is no harm
- To individuals because there is no enforcement now that the tax has been reduced to zero. There is no harm if they don't sign up.
- To the states because people signing up for Medicaid are not doing so because of the mandate.
Separability
When Original Act was passed, the government argued that the mandate was inseparable from the rest of the act because enough people wouldn’t enroll to pay for the ACA if there were no mandate.
But that was 2010 and the changes in 2017 were based on
- the Supreme Court's first decision which called the fee a 'tax' and they wrote the law to meet the conditions the Supreme Court laid out
- realization that the mandate wasn’t necessary, as one attorney said, the law included carrots and sticks. The mandate was the stick. By 2017 they realized that the carrots were enough without the stick.
The plaintiffs are making three seeming difficult arguments:
Conflating 2010 Act and 2017. They are arguing that the mandate is essential to the rest of the act and so the whole law should be struck down. But the case is about the 2017 law which clearly no longer is based on that assumption.
Arguing that even though the tax in the mandate has been repealed, there are still injuries that people suffer. Because it is a mandate, there are people who will obey the mandate even if there is no penalty if they don’t.
Questions from conservative justices seem unconvinced on key points;
Kavanaugh said it seemed a straightforward case for severability.
Political Considerations Another, perhaps more interesting, question is what sort of non-legal considerations are influencing the court. I see two:
The impact on the US of eliminating the ACA.
We know Chief Justice Roberts pays attention to the Court’s credibility among the US population. He sided with the four liberals in the original challenge to the ACA. It’s likely that he would be working to get a majority saving the ACA now. Even more so now that
- Congress has gone back and corrected the ACA based on the Supreme Court’s original decision, and
- The impact of 20 million people losing their health insurance during a pandemic increases the need to consider the outcome of their decision.
The Democrats' biggest challenges to nominee Barrett were that Trump was putting her on the court specifically to vote down the ACA this week and vote in Trump’s favor in future cases (like election cases and abortion, etc.)
To what extent did the barrage of concern by the Democrats make a difference on the environment in which the justices hear and decide this case
To what extent might Barrett feel a need to show the Democrats wrong, by voting to keep the ACA?
To what extent might the whole court feel more pressure and public attention to their decision now?
Or, is it possible that the states challenging the ACA don't have as strong a case as the President thought and the Democrats feared and that given the changes Congress made to the ACA would satisfy enough of the Supreme Court justices anyway.
You can listen to it all here: (It starts at about 29:30)
I did note that the attorneys arguing both sides did use the term 'textual' a few times.
When I looked for the video of the hearing I did notice that my view that the Court won't throw out the ACA seems to be shared by others.
