The next war on the ACA
By 
Your reminder that the Supreme Court will be hearing the latest challenge to the Affordable Care Act on November 10th:
If that argument sounds specious to you, you’re right. Particularly weak is the idea that the now unenforced mandate is so essential to the rest of the ACA that the rest of the statute cannot survive without it. Under current Supreme Court doctrine, an unconstitutional provision is severable unless it is established that Congress would have preferred to not enact the law than to enact it without the relevant provision. But we know Congress’ preference: If Congress believed that eliminating the tax penalty would make the rest of the statute unworkable, they presumably would have repealed it — but they did not. Indeed, the argument is so weak that even some of the most prominent supporters of previous rounds of anti-ACA litigation have called the suit legally baseless.
But weak as the argument is, both a Republican District Court judge and two-Republican nominated judges on a 3-judge Fifth Circuit panel bought it. While Justice Ginsburg was still on the court, the suit had little chance at the Supreme Court — if Chief Justice Roberts was unwilling to strike down the ACA before most of it had gone into effect in 2012, it’s hard to imagine he would vote to take health care away from tens of millions of people based on legal arguments that are even worse now. But the calculus has changed. If a Ginsburg replacement has not been confirmed yet, an eight-justice Supreme Court would hear the case, but because the 5th Circuit ruled against the ACA, its ruling would stand if the Supreme Court deadlocked. If McConnell does get a replacement confirmed before the election — by far the most likely outcome — the ACA’s opponents won’t need Roberts’ vote to get the act struck down, and the lower court decisions indicate that the default position of Republican nominees is to favor the suit.
Congress might be able to temporarily stave off the grim reaper if it can eliminate the filibuster and repeal the individual mandatem (preferably accompanied by more generous subsidies) before a decision is handed down, but 1)that may not be easy and 2)even that it likely to be a temporary reprieve. (In case you’re wondering, Amy Coney Barrett thinks the ACA is unconstitutional, and indeed agrees with Randy Barnett that the Constitution enacted Mr. Robert Nozick’s Anarchy, State and Utopia.)
Honestly, the best chance is Roberts convincing Kavanaugh that this probably isn’t the ideal time to kick tens of millions of people off their health insurance. Not that I would have a lot of confidence in that.
…Good thread:
The ACA case is a perfect example: the plaintiffs don't have standing ($0 tax doesn't affect them), their theory is absurd (Congress can't zero-out a tax?), and the remedy is ridiculous (the $0 tax is plainly severable from pre-existing condition protections). And yet… /1 https://t.co/wjtDMkujlr— Max Kennerly (@MaxKennerly) September 22, 2020